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HANDBOOK 


TO 


THE  LABOR  LAW 

OF 

THE   UJ^ITED    STATES 


BY 

F.    J.    STIMSON 


NEW   YORK 

CHARLES  SCEIBNERS  SONS 

1907 


Copyright,  1896,  bt 
CHARLES  SCRIBNEE'S  SONS 


TROW    OlfltCtORT 

PRINTING  AND  eOOKBINOING  COMPAtfV 

«EW   YORK 


PREFACE 

This  book  is  the  resvilt  of  an  attempt  to  set 
forth,  as  it  exists  in  the  United  States  to-day, 
that  law  of  labor  disputes  and  the  regulation  of 
industrial  affairs  and  protection  of  employees 
which  has  had  its  greatest  development  in  the 
last  few  years.  While  it  is  hoped  that  the  work 
is  sufficiently  full  and  accurate  to  serve  as  a  legal 
text-book,  the  author's  chief  object  has  been  to 
make  it  a  clear  and  trustworthy  guide  for  labor- 
ing men  and  their  several  organizations  through- 
out the  United  States.  Therefore,  though  occa- 
sionally indicating  in  what  directions  future 
improvement  may  be  looked  for,  he  has  mainly 
confined  himself  to  a  statement  of  the  law  as  it 
exists  to-day.  To  save  space,  the  words  chap- 
ter, section,  etc.,  have  generally  been  omitted 
from  the  citations  of  statutes,  their  absence 
being  indicated  by  commas ;  and  the  references 
are  always  to  the  annual  laws  of  the  several 
States,  or  to  the  latest  revision  in  general  use. 
The  abbreviation  C.  is  used  for  Constitution. 

Boston,  .January,  1896. 


TABLE   OF   CONTENTS 

FAOE 

Table  of  Cases,         .......  xi 

CHAPTER   I 

The  Labor  Contract, 1 

§    1.  General  Constitutional  Right  to  Freedom  of 

Contract,        ......  1 

§    2.  Right  to  Freedom  of   Contract   by  Written 

Constitutions,    ......  10 

§    3.   The  Employment  Contract,         ...  15 

§    4.   The  Police  Power, 19 

§    5.  Intimidation  and  Interference,   ...  22 

§  6.  The  Enforcement  of  the  Labor  Contract,  .  29 
§    7.  Breach   of    the    Employment   Contract    not 

Criminal,        ......  34 

§    8.  Discharge  or  Termination  by  the  Employer,  35 

§    9.  Of  the  Duties  of  the  Employee,     ...  38 

CHAPTER   II 

Statutes  Regulating  the  Employment  Contracts,  40 

§  10.  Wages, 40 

§  11.  Hours  of  Labor,  Generally,  ....  43 

§  12.  Public  Labor  Hours, 52 

§  13.  Hours  of  Labor,  Women  and  Minors,   .         .  65 
§  14.  Hours  of  Labor,  Special  Occupations,         .  65 
§  15.  Women's  and  Children's  Hours  in  Special  Oc- 
cupations,            71 


viii  TABLE   OF    CONTENTS 

PAGE 

§  IG.   Eilurational  Kcstrittions  on  Minors,   .         .  73 
Table  of  Legal  Hours  of  Labor  for  all  the 

States, 74,  75 

§  17.    Fiirtlier    Statutory    Restrictions    upon    Child 

Labor, 70 

§  18.   Further  Statutory  Restrictions  upon  Female 

Labor,       .......  78 

§  19.  Sundays  and  Holidays,       .         .         .         .  81 

§  20.  Fines  and  Deductions  for  Imperfect  Work, 

etc., 81 

§  21.  Time  of  Payment  of  Employees,  Weekly  Pay- 
ment Laws,    ......  87 

§  22.  Notice  of  Discharge, 98 

§  23.  Money  of  Wage-Payments,         .         .         .  101 

§24.  Company  Stores,  etc., 109 

§  25.  Payment  of  Piece  Work;  Screen  Laws,  etc.,  110 

§26.  Labor  upon  Shares,  Croppers,  etc.,     .         .  112 

§  27.  The  Exaction  of  Bonds  from  Employees,      .  113 

§  28.  Charitable  Funds,  Relief  Societies,  etc.,    .  114 

§  29.  Company  Physicians,     .....  116 

CHAPTER   III 

Political  Protection  and  Legal  Privileges  of  La- 
borers, .........  117 

§  30.  General  Political  Rights,        .         .         .        .  117 

§  31.  Voting, 117 

§  32.  Alien  Labor  and  Contracts,   .         .         .         .119 

§  33.  Special  Privileges  of  the  G.  A.  R.,     .         .  123 

§  34.  Attachment  of  Wages, 124 

§  35.  Ordinary  Exemptions  not  Valid  against  Labor 

Debts, 126 

§  36.  Preference  or  Priority  of  Wage  Debts,           .  127 
§  37.  Stockholders     Specially    Liable    for    Wage 

Debts, 130 

§  38.  Insurance  and  Beneficiary  Funds  Exempt  to 

Laborers, 132 


TABLE   OF   CONTENTS  IX 


PAGE 

§  39.  Other  Legal  Privileges  of  Laborers,  etc.,  .         132 

§  40.  Prison  Labor, 133 

§  41.  Industrial  Education  and  Apprentices,        .  138 


CHAPTER   IV 

Profit-sharing,  Co-operation,  and  Laborers'  Stock,  140 

§  42.  Co-operative  Associations,          .         .         .  140 

§  43.  Special  Stock, 142 

§  44.  Profit-sharing,    ......  144 

CHAPTER  V 

State  Regulation  of  Factories,  Mines,  Etc.,          .  146 

§  45.  The  I'actory  Acts, 146 

§  46.  Sweatshops,  .         .         .         .         .         .         .151 

§  47.  Intelligence  Offices  and  Employment  Agen- 
cies,         153 

CHAPTER  VI 

Other   Legal   Rights    and    Liabilities   of   Master 

and  Servant,    ........  156 

§  48.   As  to  Third  Persons,           ....  156 

§  49.  Liabilities  of  Servant  to  Master,    .         .         .  157 

§  50.  Liabilities  of  Master  to  Servant,         ,         ,  161 

CHAPTER   VII 

Trades  Unions,    ........  167 

§  51.  Trades  Unions  Legalized,   ....  167 

§  52.  The  Legal  Protection  of  Labor  Unions,          .  181 

§  53.  Union  Labels, 184 

§  54.   Combinations  among  Employers,  .         .          .  185 


TABLE   OF   CONTENTS 


rilArTEK   VIII 

PAGE 

Stkikks  anu  Boycotts,    ......  194 

§  55.   Strikes 194 

§  oG.  Lockouts, 221 

§  57.   Boycotting,    .         .         .         .    '     ,         .         .  222 

§  58.   Boycotting,  the  American  Decisions,          .  247 

§  59.  Boycotting,  the  American  Statutes,        .         .  283 

§  GO.  Picketing, 290 

§  61.  Blacklisting, 300 

§  62.  Special  Laws  Concerning  Bailroad  Employ- 
ees, etc., 303 

§  63.  Pinkerton  Men,  etc., 305 


CHAPTER   IX 

Equity  Process  and  Injunctions — The  Anti-Trust 

Law  and  the  Interstate  Commerce  Law,  310 

§  64    Remedies  by  Injunction,        ....  310 

§  65.   Strikes  against  Receivers,  ....  326 
§  66.  Labor  Combinations  Unlawful  upder  Recent 

Federal  Statutes, 334 


CHAPTER  X 

Remedies  by  Arbitration,       .....  348 

§  67.  State  Boards  of  Arbitration,  ....  348 

§  68.   Creation  of  Private  Boards  of  Arbitration,  359 

§  69.  State  Labor  Bureaus  or  Commissioners,        .  362 

§  70.  State  Aid  to  the  Unemployed,    .         .         .  364 


TABLE  OF  CASES 


A 

PAGE 

Abbot  of  Lilleshall's  Case,  Selden  Soc.  Pub.,  vol.  i..224,  246 

Angle  V.  Ry.  Co.,  151U.  S. ,  1 207 

Anonymous,  12  Mod.,  248 186 

Antonio  Ry.  Co.  v.  Wilson,  19  S.  W.,  913 99 

Arthur  v.  Oakes,  63  F.  R.,  310,  317,  321 207, 

210,  215,  324,  333 

Atchison  &  N.  Ry.  v.  Baty,  6  Neb.,  37,  39 4,  14 

Austin  t'.  Murray,  16  Pick.,  121   4,  21 


B 

Bachelder  v.  Bickford,  62  Me.,  526  51 

in  re  Baker,  29  How.  Prac,  485 18 

Bank  of  Chenango  v.  Brown,  26  N.  Y.,  467 4 

Barr  v.  Essex  Trades  Council,  30  Atl.,  881 279 

Bartlett  v.  Street  Ry.  Co.,  82  Mich.,  658 51 

Baughmann's  Case,  11  Va.  L.  J.,  324 197,  198,  256 

Bergman -y.  Cleveland,  39  O.  St.,  651.,.., 80 

Bellows  V.  Bellows,  58  N.  H.,  60 314 

Birdsall  i;.  Twenty-third  St.  Ry.  Co.,  8  Daly,  419 86 

Blindell  v.  Hagan,  54  F.  R.,  40 320,  339 

Bohn  Mfg.  Co.  v.  Hollis,  55  N.  W.,  1119,  54  Minn.,  223 

189,  275 

Bonham's  Case,  8  Co.,  1186 2 

Booth  f.  Brown,  62  F.  R.,  794 334 

Bootmakers  of  Philadelphia,  pamp^ilet 176,  202 

Boston  Glass  Mfg.  z\  Binney,  4  Pick.,  425 29,  302 


Xii  TAHLK   OF    CASES 

PAOB 

Howon  V.  Mathoson,  U  Allen,  4<)0 29,  2oO 

Bowes  V.  Press,  70  L.  T.  11.,  110 38,  8rt 

Bowman  v.  Middleton,  1  Bay,  252 4 

Brace  v.  Evans,  3  R.  &  C.  L.  J.,  561 2G4 

Braceville  Coal  Co.  v.  People,  35  N.  E.,  62 10,  93 

Braddee  v.  Brownfield,  2  W.  &  S.,  271 -1: 

Bradley  v.  Falbrook  Irrigation  Co.,  68  F.  K.,  948 5 

Britain's  Case,  36  P.  L.  J.,  17 50 

Brooks  V.  Cotton,  48  N.  H.,  50 52 


C.  B.  &  Q.  R.  R.  V.  Wymore,  58  N.  W.,  1120 lU 

C.  RR.  V.  Greely,  17  N.  H.,  47    4 

Campbell  v.  Shotwell,  3  Wkly.  L.  B.,  433 314 

Calder  v.  Bruce,  3  Dall.,  386 4 

Callan  v.  Wilson,  127  U.  S.,  540 262 

Carew  v.  Rutherford,  106  Mass.,  1 23,  29,  215,  251 

Carson  v.  Ury,  39  F.  R.,  777 184 

Casey  v.   Cincinnati   Typographical   Union,  45   F.  R., 

135 265,  319 

re  Charge  to  Grand  Jury,  62  F.  R.,  828,  340  ;  63  F.  R., 

436  ;  64  F.  R.,  724 345 

Chair  Co.  v.  Runnels,  77  Mich.,  Ill 133 

Chipley  v.  Atkinson,  1  So.  R.,  934 37 

Cigarmakers'  Union  v.  Conhaiin,  40  Minn.,  243 184,  250 

Cigarmakers'  Union  v.  Brendel,  22  Atl.,  912 184,  185 

Clark,  Mary's  Case,  1  Blackf.,  Ind.,  122 30 

Cochran  v.  Van  Senley,  20  Wend.,  365 4 

Coeur  d'Alene  Mining  Co.  v.  Miners'  Union,  51  F.  R.  260 

322,  332 

Cohn  V.  People,  37  N.  E,  60 185 

Commonwealth  v.  Alger,  7  Cush.,  53. 19 

Commonwealth  r.  Carlisle,  Brightley's  Rep.,  36 168,  203 

Commonwealth  v.  Curran,  3  Pittsburg,  143 216 


TABLE    OF    CASES  Xlll 

PAGE 

Commonwealth  v.  Dyer,  128  Mass.,  170 25 

Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.,  383.  .7,  64 

Commonwealth  v.  Hunt,  4  Mete,  111 168,  204,  247,  270 

Commonwealth  v.  Judd,  2  Mass.,  329 247 

Commonwealth  v.  Perry,  155  Mass.,  117,  121,  127 4, 

6,  10,  11,  83 

Commonwealth  v.  Shelton,  11  Va.  L.  J.,  324 256 

Commonwealth  v.  Sheriff,  38  Leg.  Int.,  412 215 

Commonwealth  v.  Tack,  1  Brewster  (Fa.),  511 190 

Commonwealth  v.  Waite,  11  Allen,  264 22 

ContaudRR.  v.  Greely,  17  N.H.,  47 4 

Corfield  v.  Coryell,  4  Wash.  C.  C,  371,  380 4,  12 

Cote  V.  Murphy,  159  Pa.  St.,  420 ;  28  Atl.,  190 14,  278 

Crump  V.  Commonwealth,  84  Va.,  927 264 

Curran  v.  Treleaven,  17  Cox  C.  C,  354 208,  295 


D 

ex  parte  Dalton,  28  L.  R.  Ir.,  36 197 

Davis  t'.  Ohio,  30Wkly.  L.  B.,  342 ..    182 

Debs,  pet.,  v.  158  O.  S.,  564  (see  U.  S.  v.  Debs) 339 

De  Pear  v.  The  Cooks'  Union,  27  Chicago  Legal  News, 

387   274 

Delz  i>.  Winfree,  80  Tex.,  400 ;   16  S.  W.,  Ill ." .   277 

Denny's  Case,  Lewis  Cr.  L.,  625 214 

Dodd  V.  Una,  13  Stew.,  672 314 

re  Doolittle,  23  F.  R.,  .544 205,  327 

Dueber  Watch  Case  Co.  v.  Howard  Watch  Co.  55  F.  R., 

851;  66  F.  R.,  637 187,  266 

Dueber  Watch  Case  Co.,  24  N.  Y.  Sup.,  647 268 


East  Kingston  v.  Towle,  48  N.  H.,  57,  61 4,7 

re  Eight-hour  Law,  39  Pac.  (Col.),  328 45 


Xiv  TABLE   OF   CASES 

PAOB 

Eilenbeekor  r.  riymouth  Co.,  134  U.  S.,  31 314 

Emanuel's  Case,  G  C.  II.  Rec,  33 199 

Emperor  of  Austria  v.  Kossuth,  3  De  G.  F.  &  J.,  232 317 


F 

Farmers'  Loan  &  Trust  Co.  v.  No.  Pacific  R.  R.  Co.,  60 

F.  R.,803. 210,  324,  332 

Farrer  v.  Close,  L.  R.,  4  ;  Q.  B.,  602 202 

Fletcher  v.  Peck,  6  Cranch,  87 4 

Ford  V.  ^licago  Milk  Assocn.,  39  N.  E.,  651 192 

Frisbie  v.  United  States,  157  U.  S.,  160 85 

Frorer  v.  People,  31  N.  E.,  395 107 

Fuller  V.  Brown,  11  Mete,  440 39 


G 

Garrigus  v.  State,  93  Ind.,  239 314 

Georgia  v.  Brailsford,  2  Dall.,  402 317 

Gibson  f.  Lawson,  17  Cox  C.  C,  854 206,  208,  295 

Gladstone,  W.  E.,  speech 219 

Godcharles  v.  AVigeman,  113  Pa.  St.,  437 106 

Graham  ^•.  St.  Charles  Ry.  Co.,  27  L.  R.  A.,  416 310 

in  re  Grand  Jury,  62  F.  R.,  834 343 

in  re  Grand  Jury,  62  F.  R. ,  828 345 

in  re  Grand  Jury,  62  F.  R.,  840 345 

Gregory  v.  Duke  of  Brunswick,  6  Mann.  &  Gr.,  205,  953 

197,  232 
Grey's,  Lord,  Case,  9  How.  St.  Tr.,  127 196 


H 

Hagan  v.  Blindell,  54  F.  R.,  40;  56  F.  R.,  696 268 

Ham  V.  McClaws,  1  Bay,  98 4 

Hancock  r.  Yaden,  121  Ind.,  366 85,  92,  107 


TABLE   OF    CASES  XV 

PAGE 

Harmon  v.  Salmon  Falls  Co.,  35  Me.,  447 100 

Hartford  Carpet  Weaver's  Case,  pamphlet 178 

Haskins  v.  Royster,  70  N.  C,  001 29 

Helpbenstine  v.  Hartig,  5  Ind.  App.,  172 46,  51,  186,  202 

reHiggins,  27  F.  R.,  443 ' 205,  330 

Hilton  V.  Eckersley,  6  El.  &  Bl.,  47 180,  245 

Hocking  V.  Coal  Co.  v.  Rosser,  41  X.  E.,  263 48,  133 

Hoke  V.  Henderson,  4  Devine,  15 4 

Holden  v.  James,  11  Mass.,  396 4 

Holmes,  O.  W.,  decision 207,  296 

re  House  Bill,  No.  107,  39  Pac,  431 .^ 88 

re  House  Bill,  No.  203,  39  Pac,  431 Ill 

Hunt  v.  Otis  Co.,  4  Mete,  464 39 


re  Jacobs,  98  N.  Y.,  98 20,  151 

Jackson  v.  Stanfield,  36  N.  E.,  345 277 

Johnson   Harvester   Co.    v.    Meinhardt,    60    How.    Pr., 

163,  168 183,  214 

Jones  1).  Shiawassee  Circuit  Judge,  53  N.  W.,  976 133 

Journeyman  Cordwainers  of  New  York.  2  Wheel.   Cr. 

C,  202 202 

Journeymen  Cordwainers  of  Pittsburg,  pamphlet 176 

Journeymen  Tailors'  Case,  8  Mod.,  11 176 

Journeymen  Tailors'  of  Philadelphia,  pamphlet 178 

Judd  V.  Harrington,  139  N.  Y.,  105 192 

Judge  V.  Bennett,  36  W.  R.,  103 294 


K 

re  Keimer,  12  Misc.  (N.  Y.,  615) '.   124 

King,  etc.     See  Rex. 

Koehler  v.  Buhl,  94  Mich.,  496 37 

re  Kuback,  85  Cal.,  274 53,  55 


XVI  TABLK    OK    CASES 


L 

Page 

T.ako  Eric  &  AV.  Ry.  Co.  v.  Bailey,  61  F.  R.,  494 324 

re  Leaeli,  KU  Ind.,  (J65 65 

Leas  V.  Penna.  Co.,  37  N.  E.,  423 114 

Leep  V.  Ry.  Co.,  25  S.  W.,  75 10,  92 

ex  parte  Lennon,  64  F.  R.,  320 312,  325 

Longshore  Printing  Co.  v.  Howell,  26  Ore.,  527 273 

Low  V.  Rees  Printing  Co.,  59  N.  W.,  362,  366,  368,  762, 

41  Neb.,  127 2,  3,  4,  10,  11,  14,  15,  19,  20,  44,  46 

Lumley  v.  Wagner,  1  I)e  G.,  M.  &  G.,  604 30 

Luske  V.  Hotchkiss,  37  Ct.,  219 52 


M 

Macauley  v.  Shackell,  1  Bligh  N.  S.,  96,  127 318 

McCarthy  v.  Mayor  of  N.  Y.,  96  N.  Y.,  1 52 

McCullough  V.  Brown,   19  S.  E.,  458,  41  S.  C,  220.  .13,  365 

McDonnell  v.  Henderson,  38  N.  C,  562 314 

McVey  v.  Brendel,  144  Pa.,  235 184 

Maguire,  Mary's  Case,  57  Cal.,  604 80 

Maine  v.  Doherty,  60  Me.,  504 4 

Mapstrick  v.  Ramge,  9  Neb. ,  390 210 

Master  Stevedores  v.  Walsh  2  Daly,  1  (See  Stevedores 

r.  Walsh) 171,  201,  203 

Merschiem  v.  Musical  Mutual  Protective  Union,  24  Abb. 

N.  C,  252 172 

Miller  v.  C.  B.  &  Q.  Ry.  Co.,  65  F.  R.,  305. 114 

Millettf.  People,  117  111.,  294.. Ill 

Minor  v.  Happersett,  21  Wall,  162 65 

Mitchel  f.  Reynolds,  1  P.  W.,  181 , 2 

Mogul  S.  S.  Co.  V.  Macgregor,  66  L.  T.,  N.  S.,  1 ;  L.  R 

23  Q.  B.  D.,  598 187,  200,  231,  244,  319 

Moor  V.  Veazie,  32  Me.,  344,  360,  544 5   6,  84 

Moores  v.  Bricklayers'  Union,  23  Wkly   L.  B.,  48 227 

More  V.  Bennett,  29  N    E.  Rep.,  888 , 179,  189 


TABLE   OF   CASES  XVll 

PAGE 

Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  St., 

173 191,  245 

Mugler  V.  Kansas,  123  U.  S.,  624 21 

Mulcahy's  Case,  L.  R.,  3 ;  H.  of  L.,  806 242 

Murdock  v.  Walker,  152  Pa.,  595 271,  296 


N 

National  Distilling  Co.  v.  Cream  City  Co.,  86  Wis.,  352.   192 

Nester  v.  Continental  Brewing  Co.,  161  Pa.  St.,  473 192 

Newman  v.  Commonwealth,  34  P.  L.  J.,  313 215 

New  York  Elevated  Railway  Cases,  70  N.  Y.,  350 14 


O 

Old  Dominion  S.  S.  Co.  v.  McKenna,  30  F.  R.,  48.  .256,  319 

Olive  V.  Van  Patten,  25  S.  W.,  428 276 

Olmstead  v.  Beal,  19  Pick,  528 39 

Opinions  of  Justices,  163  Mass.,  589 7,  85,  90 

Opinions  of  Justices,  4  N.  H.,  566 7 

Orr  V.  Quimby,  54  N.  H.,  690,  606 4 


P 

Palmer  v.  State,  39  O.  St.,  236 22 

Park  v.  Detroit  Free  Press  Co.,  72  Mich.,  560 14,  50 

Parrot,  Tiburcio's  Case,  5  Pac.  C.  L.  I.  Supp't. 119 

Payne  v.  RR.  Co.,  13  Lea,  507 38 

People  f.  Budd,  117  N.  Y.,  1 21 

People  V.  Coachmen's  Union,  24  N.  Y.  S.,  114 171 

People  tJ.  Ewer,  141  N.  Y.,  129.. 64,  78 

People  V,  Fisher,  14  Wend.,  1 176 

People  V.  Fisher,  50  Hun,  552 184 

People  V.  Flagg,  46  N.  Y.,  404 5 


XVlll  TABLE   OF   CASES 

PAGE 

People  r.  Gallagher,  4  Mich.,  244 4 

People  V.  Gill,  1  N.  Y.  Crim.  Rep.,  292;  6  N.  Y.  Crim., 

509 259 

People  V.  Gillson,  109  N.  Y.,  389,  399 10,  13,  20 

People  V.  Hawkins,  32  N.  Y.  Sup.,  524 137 

People  V.  Kostka,  4  N.  Y.  Crim.  R.,  429 259 

People  V.  Lawrence,  54  Barb.,  516 4 

People  V.  Hawkins,  32  N.  Y.  Sup.,  524 137 

People  V.  Hughes  Ray,  Contr.  Lim.,  356 183 

People  V.  Melvin,  2  Wheeler,  Crim.  Cas.  (N.  Y.),  262.  . 

176,  202 

People  V.  Milk  Exchange,  27  L.  R.  A.,  437 192 

People  V.  Mas.  Mut.  Pro.  Union,  118  N.  Y.,  101 171 

People  V.  North  River  Sugar  Refinery,  121  N.  Y.,  582. .    192 

People  V.  Petherani,  64  Mich.,  252 197,  225 

People  V.  Sheldon,  139  N.  Y.,  251 192 

People  V.  Trequier,  1  Wheeler  Crim.  Cas.,  142 204 

People  V.  Walbridge,  3  Wend.,  120 14 

People  V.  Warren,  28  N.  Y.  Sup.,  303 63 

People  V.  Warren,  34  N.  Y.  Sup.,  942,  944 18,  120 

People  V.  Wilzig,  4  N.  Y.  Crim.  Rep.,  403 257,  296 

People  V.  Phyfe,  136  N.  Y.,  554 71 

People  ex  rel.  Warren  v.  Beck,  144  N.  Y.,  225 53 

Perham's  Case,  5  H.  &  N.,  30 238 

Pettibone  v.  U.  S.,  148  U.  S.,  197 214,  269,  311,  321 

Phoenix  Bridge  Co.  v.  Keystone  Co.,  142  N.  Y.,  425 192 

Pittsburg  Cordwainers'  Case,  Cogley,  65 183,  203 

Piatt  V.  P.  &  R.  R.  R.  Co.,  65  F.  R.,  660 183 

Poulterers'  Case,  9  Co.,  55  B 199 

Preston  v.  Am.  Linen  Co.,  119  Mass.,  400 100 

Printing  Co.  v.  Sampson,  L.  R.  19,  Eq.,  462 1 


Queen,  etc.     See  Reg. 


TABLE   OF   CASES  XIX 


R 

PASE 

Ramsey  v.  People,  142  111.,  380 Ill 

Regents  V.  Williams,  9  Gil.  &  J.,  365 4 

Beg.v.  Bauld,  13  Cox  C.  C,  283 293 

Reg.  V.  Best,  1  Salk,  174 196,  198 

Reg.  V.  Bunn,  12  Cox  C.  C,  316 34,  35,  206,  241 

Reg.  V.  Duffield,  5  Cox  C.  C,  404 236 

Reg.  V.  Druitt,  10  Cox  C.  C,  592 2,  206,  225,  241,  291 

Reg.  V.  Hewitt,  5  Cox  C.  C,  162 225,  236 

Reg.  V.  Hibbert,  13  Cox  C  C,  82 293 

Reg.  V.  McKenzie,  67  L.  T.  R.,  N.  S.,  201 295 

Reg.  V.  Parnell,  14  Cox  C.  C,  508 224,  241 

Reg.  V.  Rowlands,  5  Cox  C.  C,  436 237 

Reg.  V.  Shepherd,  11  Cox  C.  C,  325 293 

Bexv.  Bykerdike,  1  Moody  &  R.,  179 238 

Rex  V.  Cope,  1  Stra.,  144 197 

Bexv.  Eccles,  3  Dougr.,  337 197,  199 

Rexv.  Gill,  2  B.  &  Aid.,  204 199 

Rex  V.  Mawbey,  6  T.  R.,  619 197 

Rex  V.  Starling,  1  Keble,  650 202 

Richardson  v.  Buhl,  77  Mich.,  632 192 

Ripley  v.  Evans,  87  Mich.,  217 130 

Ritchie  v.  Illinois,  155  111.,  98 14,  15,  47,  56,  64 

Rogers  v.  Dutt,  13  Moore  P.  C  ,  209 198 

Rogers  r.  Evarts,  17  N.  Y.  Sup.,  266 323 


Salt  Co.  V.  Guthrie,  35  O.  St.,  666 192 

San  Antonio  Ry.  Co.  v.  Wilson,  19  S.  W.,  910 13,  90,  99 

Schnurr  v.  Savigny,  85  Mich.,  144 52 

Secor  V.  RR.  Co.,  7  Biss.,  513 205 

Shelbourne  v.  Oliver,  13  L.  T.  R.,  N.  S.,  630 240 

Sherry  v.  Perkins,  147  Mass.,  212 214,  263,  296 

Shivers  v.  Newton,  16  Vroom,  469 22 


XX  TABLE   OF   CASES 

PAGE 

Skinner  r.  Kitch,  10  Cox  C.  C,  493 240 

Slauglitcr  House  Cases,  16  Wall.,  106 4,  85,  91 

Smith  T.  People,  25  111.,  17 196 

Snow  r.  "Wheeler,  1 13  Mass.,  179 168,  178 

Solteau  r.  I)e  Held,  2  Sim.  &  Stew.,  153 318 

Southern  California  Ry.   Co.  v.  Rutherford,  62  F.  R., 

796 32,  342 

Spariiawk  r.  Union  RR.  Co 318 

Spies  V.  People,  122  111.,  1 197 

Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.,  551 315 

Stark  V.  Parker,  2  Pick.,  267 39 

State  V.  Aiken,  42  S.  C,  223 365 

State  V.  Bishop,  31  S.  W.,  9   185 

State  V.  Brown  &  Sharpe  Mfg.  Co.,  25  Atl.  Rep.,  246. . .     91 

State  V.  Buchanan,  5  Harris  &  J.  (Md.),  317 196,  245 

State  V.  Burnham,  15  N.  H.,  396 195 

State  V.  Campbell,  64  N.  H.,  402 22 

State  V.  Donald.son,  32  N.  J.  L.,  151 249 

State  V.  Dyer,  32  Atl.,  814 283 

State  tJ.  Firecreek  Coal  Co.,  33  W.  Va.,  188 11,  106 

State  V.  Fourth  Jud.  Distr.  Court,  34  Pac,  39 314 

State  V.  Glidden,  55  Conn.,  46 253 

State  V.  Goodwill,  13  W.  Va.,  179  ;  22  S.  W.,  353.  .  11,  15,  106 

State  V.  Hughes,  Ray,  356    183 

Staler.  Julow,  31  S.  W.,  781 50,  182 

State  V.  Loomis,  22  S.  W.,  350 13,  107 

State  V.  Marshall,  64  N.  H.,  549 22 

State  V.  Nebraska  Distilling  Co.,  29  Neb.,  700 192 

State  V.  N.  River  Sugar  Refinery,  etc.  (see  Sugar  Trust 

Case). 

State  V.  Stewart,  59  Vt  ,  272,  273 11,  183,  232,  296 

Stevedores'  Association  v.  Walsh,  2  Daly,  1 

168,  169,  201,  203 

Strasser  v.  Moonelis,  108  N.  Y.,  611 184 

Sugar  Trust  Case,  121,  N.  Y.,  582 192 

Sweet  v.  Hulbert,  51  Barb.,  318 4 


TABLE   OF   CASES  XXI 


T 

FAGK 

Tarleton  v.  McGawley,  Peak  N.  P.  C,  270 23,  310 

Taylor  v.  Porter,  4  Hill,  144 5 

Temperton  v.  Russell,  69  L.  T.  R.,  N.  S.,  78 245 

Terrett  v.  Taylor,  9  Cranch,  43 4 

Texas  Standard  Cotton  Oil  Co.  v.  Adoue,  19  S.  W.,  274.    191 
Thomas  v.  C.  N.  O.  &  T.  P.  Ry.  Co.,  62  F.  R.,  303,  803 

205,  214,  272,  343 

Timberly  v.  Childe,  1  Sid.,  68  195 

Toledo,  etc.,  Ry.  Co.  v.  Penna.  Ry.  Co.,  54  F.  R.,  746, 

730 320,  339 

Tubworaen  of  London,  1  Keble,  650 201 


U 

U.  S.  V.  Agler,  62  F.  R.,  824 344 

U.  S.  V.  Cassidy,  67  F.  R.,  698,  700,  705 198,  275,  347 

U.  S.  V.  Debs,  64  F.  R.,  724,  725;  65  F.  R.,  210;  62  F. 

R.,  832 222,  273,  325,  339,  346,  347 

U.  S.  V.  Elliot,  62  F.  R.,  801 342 

U.  S.  V.  Kane,  23  F.  R.,  748 205,  329 

U.  S.  V.  Martin,  94  U.  S.,  400 53,  54 

U.  S.  V.  Ollinger,  55  F.  R.,  959   53 

U.  S.  V.  Patterson,  55  F.  R.,  605 341 

U.  S.  V.  Workingmen's  Amalgamated  Council  of  New 

Orleans,  54  F.  R.,  994 320,  321,  341 

V 

Van  KoTUv.  Van  Horn,  56  N.  J.  L  ,  318 269 

W 

re  Wabash  RR.  Co.,  24  F.  R.,  217 829 

Walker  v.  Cronin,  107  Mass.,  555 214,  252,  319 

Wallace  v.  Georgia  Ry.  Co.,  22  S.  E.,  579 302 


XXll  TABLE    OF    CASES 

PAGE 

Walls  I'.  Coleman,  34  N.  Y.  St.,  281 100 

WalLshy  r.  Anley.  7  Jurist,  N.  S.,  465 239 

Wally's  Heirs  v.  Kennedy,  2  Yerger,  554 50 

Warren  t>.  Solen,  112  lud.,  213 130 

Waterhou.se  v.  Comer,  55  F.  R.,  149 334 

Watertown  v.  Mayo,  109  Mass.,  315  21 

Weener  v.  Brayton,  152  Mass.,  101 184 

Weideman  v.  State,  56  N.  W.,  688 22 

Wells  v.  McGeoch,  71  Wis.  ,196 192 

Wheeling  Bridge  Co.  v.  Gilmore,  8  O.  C.  C,  164,  658, 

664,  669 4,  5,  10,  47,  50,  70,  108 

Wick  China  Co.  v.  Brown,  30  Atl.  R.,  261 215,  299 

Wilkinson  v.  Leland,  2  Pet.,  627 4,  8 

Williamstown  v   Darge,  71  Wis.,  643 314 

re  Wood,  82  Mich.,  75 ..   314 

Wood  tJ.  Bowron,  L.  R.,  2  Q.  B.,  21 239 

re  Worthen,  58  JF.  R.,  467 22 


HANDBOOK 

TO 

THE    LABOR    LAW 

OF 

THE   UNITED   STATES 


HANDBOOK  TO  THE  LABOR  LAW 
OF  THE  UNITED  STATES 


CHAPTER  I 

THE   LABOE   CONTEACT 

§  1.  General  Constitutional  Right  to  Freedom 
of  Contract. — It  is  a  question  much  discussed, 
whether  there  is  such  a  thing  as  unwritten  con- 
stitutional right  to  freedom  of  contract ;  that  is, 
whether  it  has  been  established  as  a  principle 
of  English  liberty  that  a  man  may  make  any 
contract  he  choose,  not  criminal  or  immoral,  and 
call  upon  the  courts  to  enforce  it.  If  there  is 
such  a  right,  it  may  only  be  forbidden  or  limited 
by  express  act  of  Parliament  in  England,  and 
only  in  this  country  by  constitutions,  not  by 
Congress  or  the  state  legislatures.  Although 
there  are  both  historic  and  modem  statements 
of  English  courts  affirming  such  a  right,'  it  is 

•  By  Sir  J.  Jessel,  M.  R.,  p.  465  (Printing  Co.  v.  Sampson, 
L.  R.  19,  Eq.,  462). 

"  It  must  not  be  forgotten  that  you  are  not  to  extend  arbi- 
trarily those  rules  which   say  that  a  given  contract  is  void 


2  lIA\l>HOOK    TO    THE    LABOK    LAW 

I)robable  that  parliament  is  in  that  country 
supreme ; '  and  that  these  statements  are  not 
meant  to  extend  to  a  case  where  a  statute  has 
been  enacted  forbidding  any  special  kind  of 
contract  before  it  is  made.  Important  statutes, 
such  as  the  Irish  Land  Acts,  have  been  passed 


as  being  against  public  policy,  because  if  there  is  one  thing 
which  more  than  another  public  policy  requires,  it  is  that  men 
of  full  age  and  competent  understanding  shall  have  the  ut- 
most liberty  of  contracting,  and  that  their  contracts,  when  en- 
tered into  freely  and  voluntarily,  shall  be  held  sacred  and 
shall  be  enforced  by  courts  of  justice.  Therefore,  you  have 
this  paramount  public  policy  to  consider — that  you  are  not 
lightly  to  interfere  with  this  freedom  of  contract.  Now, 
there  is  no  doubt  public  policy  may  say  that  a  contract  to 
commit  a  crime,  or  a  contract  to  give  a  reward  to  another  to 
commit  a  crime,  is  necessarily  void.  The  decisions  have 
gone  further,  and  contracts  to  commit  an  immoral  offence,  or 
to  give  money  or  reward  to  another  to  commit  an  immoral 
offence,  or  to  itiduce  another  to  do  something  against  the 
general  rules  of  morality,  though  far  more  indefinite  than  the 
previous  class,  have  always  been  held  to  be  void.  I  should 
be  sorry  to  extend  the  doctrine  much  further." 

So,  in  Mitchel  v.  Reynolds,  1  P.  W.,  181,  decided  in  1711, 
the  courts  say  that  "restraints  of  trade,  though  by  grants  or 
charters  from  the  Crown  or  b\'  laws  of  towns,  etc.,  are  void 
both  as  contrary  to  Magna  Charta  and  the  general  liberties  of 
the  subject.  Magna  Charta  says,  '  No  freeborn  man  shall 
be  disseized  of  his  free  tenement  or  liberties,  or  his  free  cus- 
toms,' and  the  word  '  customs '  has  always  been  taken  to 
extend  to  freedom  of  trade."  See  also  Lord  Bramwell's 
opinion  in  Reg.  v.  Druitt,  10  Cox  C.  C,  592,  hereinafter,  §  57. 

-'  Cooley,  Const.  Limitations,  *172;  1  Blackstone,  91.  Coke 
held  the  opposite  opinion;  see  Bonham's  Case,  8  Co.,  1186. 


OF   THE   UNITED    STATES  S 

iu  the  present  century,  denying  unlimited  free- 
dom of  contract  in  special  cases.  A  safer  state- 
ment of  the  English  law  would  therefore  be  that 
this  right  to  freedom  of  contract  only  extends 
to  contracts  which  are  neither  criminal,  immoral, 
nor  expressly  made  illegal  by  existing  laws. 

In  this  country,  however,  our  courts  have  fre- 
quently taken  a  stronger  position  ;  and  in  some 
cases  have  seemed  to  hold  that  general  freedom 
of  contract  is  an  old  English  constitutional  prin- 
ciple. If  so,  as  the  American  colonists,  ac- 
cording to  the  opinion  of  both  Blackstone  and 
Benjamin  Franklin,'  brought  over  the  principle 
as  part  of  their  common  inherited  liberties,  be- 
fore the  adoption  of  our  written  state  and  fed- 
eral constitutions,  and,  unless  contradicted  by 
express  provisions  of  these  latter,  it  may  stand 
as  a  constitutional  principle  to-day. 

No  state  constitution  expressly  denies  the 
principle  of  freedom  of  contract ;  therefore,  if 
this  be  an  old  constitutional  right,  it  remains  to 
all  American  citizens  to-day,  unless  we  hold  that 
by  the  adoption  of  written  constitutions  they 
have  impliedly  abandoned,  at  least  as  to  the  leg- 
islature, all  constitutional  rights  not  expressed  in 
these.  It  may  still  be  questioned  whether  this  is 
generally  the  case  ;  there  is  no  high  authority  in 
favor  of  it,  except  in  Massachusetts,  which  has  a 

3  1  Bl.  Com.,  107;  4  Franklin's  Works,  Sparks,  271. 


4  HANDBOOK    TO   THE   LABOR   LAW 

peculiar  provision  iu  its  constitution  giving  to 
the  legislature  of  that  state  unusual  scope ;  and 
there  are  many  early  decisions  of  leading  judges 
against  such  a  view  ;  ■*  just  as  there  are  plenty  of 

*  Tliat  there  are  fundamental  principles  of  free  government 
underlying  the  provisions  even  of  our  written  constitutions, 
unless  expressly  denied  by  tliem,  was  the  opinion  of  Mar- 
shall, Story,  Bushrod  Washington,  and  Daniel  Webster. 
See  Fletcher  v.  Peck,  6  Cranch,  87,  at  pp.  135,  139  ;  Terrett 
V.  Ta^'lor,  9  Cranch,  -13,  at  p.  51 ;  Wilkinson  v.  Leland,  2 
Peters,  027,  at  p.  657;  5  Webster's  Works,  487;  2  ib.,  392; 
Washington's  Opinion,  Corfield  v.  Coryell,  4  Wash.,  371,  at 
p.  380;  see  also  The  Regents  v.  Williams,  9  Gil.  &  J.,  365, 
at  p.  408;  Ham  v.  McClaws,  1  Bay,  98;  Bowman  v.  Middle- 
ton,  1  Bay,  252 ;  Field's  dissenting  opinion,  Slaughter-House 
cases,  16  Wallace,  at  p.  106;  Bradley's  opinion  at  p.  116; 
Calder  v.  Bruce,  3  Dallas,  386,  by  Chase,  J.,  at  p.  388  ;  Hol- 
den  v.  James,  II  Mass.,  396,  at  p.  404;  Austin  zi.  Murray, 
16  Pick.,  121,  at  p.  124;  Hoke  v.  Henderson,  4  Dev.  (X.  C), 
15;  Atchison  &  N.  Ry.  v.  Baty,  6  Neb.,  37;  Sweet  v.  Hul- 
bert,  51  Barb.,  318,  319;  People  v.  Lawrence,  54  Barb.,  at 
p.  616;  Doe's  dissenting  opinion,  Orr  v.  Quimby,  54  N.  H., 
606;  C.  R.  R.  v.  Greely,  17  N.  H.,  47,  at  p.  56;  E.  Kingston 
V.  Towle,  48  N.  H.,  57,  at  pp.  60,  61 ;  Maine  v.  Doherty,  60 
Me.,  504,  at  pp.  509,  510;  Wheeling  Bridge  v.  Gilmore 
(1894),  8  O.  C.  C,  658,  at  p.  664;  Com.  v.  Perry,  155  Mass., 
at  p.  121. 

Cooley  takes  the  contrary  view  (Const.  Limitations,  pp. 
♦165-171),  but  his  subsequent  statements,  though  based  on 
the  threefold  division  of  power,  appear  substantially  incon- 
sistent. (See  *pp.  174-177.)  And  see,  to  the  contrary, 
People  V.  Gallagher,  4  Mich.,  244;  Iredell's  opinion,  Calder 
V.  Bruce,  3  Dallas,  386;  Orr  v.  Quimby,  54  N.  H.,  590; 
Cochran  v.  Van  Senley,  20  Wend.,  365,  at  p.  382;  Braddee 
V.    Brownfield,  2   Watts  &  Serg.,  271   at  p.  277 ;    Bank  of 


OF  THE   UNITED   STATES  5 

recent  decisions  on  the  bare  point  that  state  leg- 
islatures are  only  limited  by  the  state  and 
federal  constitution. 


Chenango  v.  Brown,  26  N.  Y.,  467,  at  p.   469 ;  People  v. 
Flagg,  46  N.  Y.,  404;  Moor  f.  Veazie,  32  Me.,  344. 

That  there  are  unwritten  constitutional  rights  in  this  coun- 
try would  seem  to  be  the  theoretical  principle ;  but  there  are 
not  many  actual  cases  directly  nullifying  a  statute  on  tliis 
ground  since  the  Revolution.  As  Iredell  said,  in  Calder  v. 
Bruce,  above  cited,  "  it  is  true  that  some  speculative  jurists 
have  held  that  a  legislative  act  against  natural  justice  must, 
in  itself,  be  void ;  but  I  cannot  think  that  under  a  govern- 
ment composed  of  legislative,  executive,  and  judicial  depart- 
ments, any  court  of  justice  would  possess  a  power  to  declare 
it  80."  (See,  however,  Maine  v.  Doherty,  and  Sweet  v. 
Hulbert,  above;  Taylor  ?;.  Porter,  4  Hill  (N.  Y.),  144;  Brad- 
ley V.  Falbrook  Irrigation  Co.,  Pac.  R.,  and  Wheeling  Bridge 
V.  Gilmore,  above.)  On  the  other  hand,  the  better  opinion 
would  seem  to  be  that  if  there  be  any  such,  the  people  have 
not  waived  them  by  adopting  written  constitutions,  except  in 
so  far  as  these  expressly  control  them.  The  courts,  more- 
over, have  been  very  broad  in  interpreting  the  provisions  of 
the  written  constitutions  to  include  such  fundamental  prin- 
ciples. In  East  Kingston  v.  Towle,  48  N.  H.,  57,  61,  and 
other  similar  cases,  the  provision  in  the  bill  of  rights  that 
"  no  subject  shall  be  arrested,  imprisoned,  despoiled,  or  de- 
prived of  his  life,  liberty,  or  estate  but  by  .  .  .  the  law 
of  the  land,"  has  been  interpreted  to  mean,  not  any  law  or 
statute  which  the  legislature  might  pass,  but  only  a  law  not 
in  violation  of  the  fundamental  maxims  of  justice  and  equity, 
not  arbitrarily  benefiting  one  person,  or  the  state  at  the  ex- 
pense of  another,  nor  arbitrarily  making  class  distinctions. 
The  phrases  "  law  of  the  land,"  "  due  process  of  law,"  are 
thus  made  practically  synonjmous  with  what  we  have  termed 
the  "  unwritten  constitution." 


6  HANDBOOK    TO   THE   LABOR   LAW 

The  Massachusetts  constitutional  provision 
(Part  II.,  Chap,  i.,  Sect.  1,  Ai-t.  4)  expressly 
empowers  the  legislature  "  to  make,  ordain,  and 
establish,  all  manner  of  wholesome  and  reason- 
able orders,  laws,  statutes,  and  ordinances, 
directions  and  instructions,  either  with  penalties 
or  without ;  so  as  the  same  be  not  repugnant  or 
contraiy  to  this  constitiition,  as  they  shall  judge 
to  be  for  the  good  and  welfare  of  this  Common- 
wealth, and  for  the  government  and  ordering 
thereof,  and  of  the  subjects  of  the  same."  The 
word  this  might  seem  to  authorize  the  Massa- 
chusetts Legislature  to  pass  any  laws  which  are 
reasonable  ^  and  not  in  conflict  with  the  pro- 
visions of  the  written  constitution  of  that  state. 
And  in  three  instances  at  least  the  Massachu- 
setts Supreme  Court  has  held,  twice  by  direct 
decision  and  once  inferentially,  that  the  legisla- 
ture has  power  to  limit  or  forbid  the  making  of 
certain  kinds  of  contracts  concerning  labor.® 

'  And  of  this  reasonableness  the  courts,  by  the  usual  doc- 
trine, may  not  be  the  judge.  To  leave  this  determination  to 
them  would  be  subversive  of  our  principle  of  three  depart- 
ments of  government,  to  determine  the  reasonableness  of  a 
statute  being  not  a  judicial  but  a  legislative  function.  Of  its 
constitutionality  alone  are  the  courts  the  judge.  Moor  v. 
Veazie,  32  Me.,  544 ;  and  see  next  note. 

"  Thus,  Com.  V.  Perry,  155  Mass.,  121,  the  majority  opin- 
ion, while  recognizing  general  freedom  of  contract,  seems 
to  hold  that  under  the  above  provision  the  legislature  might 
constitutionally  forbid  contracts  under  which  the  employee 


OF   THE   UNITED   STATES  7 

But  there  is  no  such  broad  authority  usually 
giveu  to  the  legislatures  by  the  constitutions  of 
the  other  states,^     It  is  probable  that  in  most  of 


rendered  himself  liable  to  a  fine  by  the  employer ;  while  in 
Opinion  of  Justices,  Weekly  Payment  Law,  163  Mass.,  589, 
and  Com.  v.  Hamilton  Mfg.  Co.,  120  Mass.,  383,  a  definite 
prohibition  by  law  of  certain  contracts  was  sustained. 

'  Nevertheless  there  are  similar  provisions  in  the  neighboring 
states  of  New  Hampshire,  Maine,  Vermont,  and  in  Georgia 
and  Alabama;  N.  H.  C,  1,  31;  2,  5;  Mass.  C,  2,  1,  1,  4;  Me. 
C,  4,  3,  1;  Vt.  C,  2,  9;  Ga.  C,  3,  7,  par.  22;  Ala.  C,  4,  25. 
But  it  does  not  appear  that  they  have  ever  been  construed,  ex- 
cept in  Massachusetts  and  Maine,  to  extend  the  power  of  the 
legislature  to  all  things  not  expressly  forbidden  in  the  state 
constitution;  and  the  Maine  constitution  expressly  so  re- 
quires. On  the  contrary,  by  an  early  opinion  of  the  Supreme 
Court  of  New  Hampshire,  given  in  1827  (4  N.  H.,  566),  this 
constitutional  limitation  of  the  legislative  authority  is  stated 
and  explained  as  follows  :  "  The  power  granted  is  a  power  to 
make  all  manner  of  laws  and  statutes  which  are  wholesome 
and  reasonable,  and  not  repugnant  to  the  constitution.  It  is 
in  its  nature  a  limited,  restricted  power.  It  is  an  old  maxim 
of  the  common  law,  that  when  an  act  of  parliament  is  against 
common  right  and  reason,  the  common  law  will  control  it  and 
adjudge  it  void;  and  one  object  of  this  provision  in  our  con- 
stitution was  to  adopt  and  confirm  that  maxim  of  the  common 
law.  An  act  of  the  legislature,  in  order  to  have  the  force  of 
a  statute,  must,  therefore,  be  neither  repugnant  to  reason  nor 
to  the  constitution." 

And  in  a  later  case,  East  Kingston* f.  Towle,  48  N.  H.,  at 
p.  59,  by  Judge  Perley,  "The  general  court  is  the  legislative 
department  of  the  state  government,  and  has  under  the  con- 
stitution an  ample  grant  of  legislative  power;  the  extent  of 
the  power  is,  however,  limited,  not  only  by  the  express  prohi- 
bitions of  the  constitution,  but  by  the  nature  itself  of  the 


8  HANDBOOK   TO   THE   LABOR   LAW 

the  states  such  power  is  expressly  denied  the 
legislature  under  their  constitutional  provision 
(inserted  usually  at  the  end  of  the  first,  or  Bill 
of  Rights  section)  that  "  this  enumeration  of 
rights  shall  not  be  construed  to  impair  or  deny 
others,  retained  by  the  people ; "  ^  or  that  "  all 

power  granted ;  and  to  be  valid  and  binding  the  act  of  legisla- 
ture must  be  within  the  general  scope  of  legislative  authority. 
The  power  delegated  by  the  constitution  "  to  make  and  or- 
dain all  manner  of  reasonable  and  wholesome  orders,  laws," 
etc.,  confers  no  authority  to  make  an  order  or  law  in  plain 
violation  of  the  fundamental  principles  of  natural  justice, 
though  the  act  may  not  be  prohibited  by  any  express  limita- 
tion in  the  constitution." 

And  in  a  Rhode  Island  case  (Wilkinson  v.  Leland,  2 
Peters,  627),  occurring  before  the  adoption  of  the  state  con- 
stitution, but  under  the  old  charter  of  Charles  IL,  which 
gave  the  legislature  power  to  make  laws  in  the  most  ample 
manner,  the  United  States  Supreme  Court,  by  Judge  Story, 
held  in  effect  that  such  power  did  not  allow  the  legislature  to 
interfere  with  general  rights  of  personal  liberty  and  property 
based  on  unwritten  constitutional  principles,  and  said  (p.  657), 
"No  court  of  justice  in  this  country  would  be  warranted  in 
assuming  that  the  power  to  violate  and  disregard  them — a 
power  so  repugnant  to  the  common  principles  of  justice  and 
civil  liberty — lurked  under  any  general  grant  of  legislative 
authority,  or  ought  to  be  implied  from  any  general  expres- 
sions of  the  will  of  the  people.  The  people  ought  not  to  be 
presumed  to  part  with  rights  so  vital  to  their  security  and 
well-being,  without  very  strong  and  direct  expressions  of  such 
an  intention." 

'  Me.  C,  1,  24 ;  R.  I.  C,  1,  23 :  N.  J.  C,  1,  21 ;  O.  C,  1, 
20;  lo.  C,  1,  25;  Minn.  C,  1,  16;  Kan.  C,  B.  Rts.,  20; 
Neb.  C,  1,  26;  Md.  Decln.  Rts.,  45;  Va.  C,  1,  21;  N.  C. 
C,  1,  37;  Mo.  C,  2,  32;   Ark.  C,  2,  29;  Cal.  C,  1,  23;  Ore. 


OF   THE    UNITED    STATES  9 

powers  not  herein  delegated  remain  with  the 
people."^  So  in  some  other  states  the  constitu- 
tions declare  that  "  a  frequent  recurrence  to  fun- 
damental principles  is  necessary  to  preserve  the 
blessings  of  liberty." '"  Do  these  fundamental 
principles  include  property  or  freedom  of  con- 
tract ?  If  so,  it  will  in  these  states  be  expressly 
withheld  from  legislative  action,  or  even  from 
the  constitution  itself.  Thus,  the  constitutions 
of  three  states  declare  that  some  rights  cannot 
be  surrendered  by  men  when  they  enter  into  a 
state  of  society  ;  as  the  New  Hampshire  phrase 
puts  it,  they  are  inalienable,  because  no  equiva- 
lent can  be  given  for  them  ;  as,  in  New  Hamp- 
shire rights  of  conscience ;  in  the  Virginias  the 
enjoyment  of  life  and  liberty,  with  the  means  of 
acquiring  and  possessing  property ; "  while  in 
Massachusetts  and  most  of  the  other  states  the 
phrase  is  "  certain,  natural,  essential,  and  unal- 
ienable rights ;   among  which  may  be  reckoned 

C,  1,  33;  Nev.  C,  1,  20;  Col.  C,  2,  28;  Wash.  C,  1,  30; 
Mon.  C,  3,  30;  Wy.  C,  1,  3G;  Ida.  C,  1,  21;  S.  C.  C,  1, 
41;  Ga.  C,  1,  5,  2;  Ala.  C,  1,  39;  Miss.  C,  3,  32;  Fla.  C, 
Decln.  Rts.,  24;  La.  C,  13. 

»  O.,  Kan.,  Neb.,  N.  C,  S.  C. 

'»  Vt.  C,  1,  18;  111.  C,  2,  20;  Wis.  C,  I,  22;  Va.  C,   1, 
17;  W.  Va.  C,  3,  20;  N.  C.  C,  1,  29;  Wash.  C,   1,  32;  S. 

D.  C,  6,  27.  In  New  Hampshire  and  Massachusetts  alone 
such  "  fundamental  principles  "  are  limited  to  those  set  forth 
in  the  constitution  itself:  N.  H.  C,  1,  38;  Mass.  C,  1,  18. 

"  N.  H.  C,  1,  4;  Va.  C,  1,  1  ;  W.  Va.  C,  3,  1. 


10  HANDBOOK    TO    THE    LABOU    LAW 

.  .  .  that  of  acquiring,  possessing,  and  pro- 
tecting property  " ;  '^  and  of  this  the  right  to  con- 
tract has  been  generally  held  to  be  a  necessary 
result.'^  So  in  Arkansas,  the  bill  of  rights  de- 
clares that  "  the  right  of  property  is  before  and 
higher  than  any  constitutional  sanction."  '* 

§  2.  Right  to  Freedom  of  Contract  by  Written 
Constitutions — But  however  we  decide  as  to 
the  unwritten  constitutional  right  the  courts 
have  held  universally  that  freedom  of  contract 
is  part  of  the  written  constitution  of  every 
state  where  it  has  come  in  question,  even  in 
Massachusetts,  despite  the  peculiar  provision  of 
its  constitution  discussed  in  §  1,  Such  right  is 
based  usually  on  the  expressed  constitutional 
"  essential  "  or  "  unalienable  "  right  to  acquire, 
possess,  and  protect  property  ;  ^  which  necessa- 

"  For  these  states  see  §  2,  note  1. 

'3  Low  ^•.  Rees  Printing  Co.,  59  N.  TV.,  362 ;  Braceville 
Coal  Co.  V.  People,  35  N.  E.,  G2 ;  Leep  v.  Ry.  Co.,  25  S.  W., 
75 ;  People  v.  Gilson,  109  N.  Y.,  399 ;  Com.  v.  Perry,  155 
Mass.,  121 ;  Wheeling  Bridge  Co.  v.  Gilmore,  8  O.  C.  C, 
at  p.  665. 

»  Ark.  C,  2,  22. 

'  This  is  substantially  the  phrase  in  twenty  states,  substi- 
tuting in  some  the  words  "  inherent  "  and  '•  indefeasible  "  for 
"  essential  "  and  "  unalienable  "  :     N.  H.  C,  1,  2;  Mass.  C. 
1,  1 ;    Me.  C,  1,  1 ;    Vt.  C,  1,  1 ;    N.  J.  C,  1,  1 ;    Pa.  C,  1 
1;  O.  C,  1,  1;  lo.  C,  I,  1;    Del.  C,  Preamble;    Va.  C,  1 
1;  W,  Va.  C,  3,  1;  Ky.  C,  1;  Ark.  C,  2,  2;  Cal.  C,  1,  1 
Nev.  C,  1,  1 ;    Col.  C,  2,  3;    Mon.  C,  3,  3;    Ida.  C,  1,  1 


OF  THE   UNITED   STATES  11 

rily  "  includes  the  right  to  make  reasonable  con- 
tracts which  shall  be  under  the  protection  of  the 
law  ; "  ^  for  the  express  phrase  "  freedom  of  con- 
tract "  is  not  found  in  any  constitution,  probably 
because  the  makers  thought  it  unnecessary. 
But  it  is  also  a  provision  of  the  federal  constitu- 
tion (Art.  IV.,  §  2),  that  "  the  citizens  of  each 
state  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several  states,"  and 

S.  C.  C,  1,  1;  Fla.  Decln.  of  Rts.,  1.  But  in  other  states  it 
is  only  declared  to  be  the  object,  or  the  sole  object,  of  govern- 
ment to  protect  the  citizen  in  the  enjoyment  of  life,  liberty, 
and  property:  111.  C,  2,  1;  Neb.  C,  1,  1;  Wy. ;  Ark.  C, 
2,2;  Ga.  C.,1,  1,2;  Ala.  C,  1,  37;  La.  C,  1 ;  so  in  Missouri 
C,  2,  4,  and  South  Dakota  C,  6,  1,  the  test  word  "  unalien- 
able "  is  not  used. 

As  the  states  have  commonly  a  provision  that  the  people 
have  at  all  times  the  right  to  alter  the  government  if  it  fail  of 
its  purposes,  or  that  "when  the  government  assumes  other 
functions  it  is  usurpation  and  oppression,"  it  would  follow  that 
if  the  legislature  passed  laws  interfering  with  these  natural 
rights,  and  the  courts  maintained  such  laws,  the  people  would 
have  as  it  were  a  constitutional  right  to  revolution.  (See 
Stimson's  American  Statute  Law,  §§  15,  182,  183,  and  184.) 

The  constitutions  of  Kentucky  and  Wyoming,  moreover, 
provide  that  "  absolute  arbitrary  power  over  the  lives,  liberty, 
or  property  of  freemen  exists  nowhere  in  a  republic,  not  even 
in  the  largest  majority"  :  Ky.  C,  2;  Wy.  C,  1,  7. 

And  that  of  Washington,  "  that  no  person  shall  be  dis- 
turbed in  his  private  affairs  or  his  home  invaded  without  au- 
thority of  law"  :  Wash.  C,  1,  7. 

'Com.  V.  Perry,  155  Mass.,  127;  State  v.  Goodwill,  13 
W.  Va.,  179,  and  State  v.  Fire  Creek  Coal  Co.,  ib.,  188;  State 
V.  Stewart,  59  Vt.,  273. 


12  HANDBOOK   TO   THE   LABOR   LAW 

these  were  held  by  Judge  Washington  ^  to  in- 
chide  all  fimdameutal  rights  belonging  to  the  cit- 
izens of  all  free  governments,  such  as  the  right  to 
life  and  liberty,  and  to  acquire  and  possess  prop- 
erty of  every  kind,  and  the  right  to  engage  in 
trade,  etc. ;  and  (Fourteenth  Amendment)  that 
"  no  state  shall  make  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 
And  the  Ninth  Amendment  provides,  "  The  enu- 
meration in  the  constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people."  There  is  also  the  proAdsion 
common  to  the  federal  and  all  state  constitutions, 
except  that  of  New  Jersey,  Ohio,  and  Indiana, 
that  no  person  can  be  deprived  of  his  life,  lib- 
erty, and  property  except  "  by  due  process  of 
law,"  or  by  "  the  law  of  the  land  ; "  ^  but  this  ap- 
plies rather  to  criminal  or  penal  process.  See, 
however,  §  1,  note  4,  above. 

For  this  reason  (that  right  to  contract  is  ex- 
pressly guaranteed  by  the  constitution)  the  fol- 
lowing kinds  of  law  have  been  declared  uncon- 
stitutional :  statutes  limiting  the  hours  of  labor 


'Corfield  v.  Coryell,  4  Wash.  C.  C,  380. 

*See  Stimson's  Am.  Stat.  Law,  §  130;  U.  S.  C.  Amt. 


OF   THE    UNITED   STATES  13 

for  adults,  such  as  eight-hour  laws,  etc.; '  truck- 
ads,  or  laws  providing  that  employees  shall  be 
paid  in  money  only,  not  in  goods  or  orders ;  ^ 
laws  forbidding  dealers  to  give  or  offer  prizes 
with  goods  sold  ;  ^  laws  forbidding  employers  to 
measure  wages  by  screened  coal ;  ^  or  to  with- 
hold wages  for  imperfect  work,^  or  damage  to 
material;  laws  providing  that  employees  must 
be  paid  at  stated  intervals  and  forbidding  con- 
tracts for  a  longer  time  ;  "^  laws  limiting  the 
right  of  a  person  to  contract  with  whom  he  will, 
as  for  instance,  with  non-union  employees ;  ^^ 
laws  forbidding  the  citizens  of  a  state  to  engage 
in  any  specified  business.^^ 

And  the  right  to  contract  is  further  protected 
by  the  fact  that  laws  specially  regulating  or  pro- 
hibiting certain  kinds  of  contracts  are  very  apt 
to  fall  under  the  constitutional  prohibition  of 
"  class  legislation."  (See  §  11,  below.)  Thus, 
weekly  payment  laws,  etc.,  have  been  held  un- 
constitutional because  they  applied  solely  to 
miners  or  railway  employees  ;  ^^  laws  restricting 
remedies  for  libel  because  they  applied  solely  to 

*  See,  hereinafter,  §§  11,  13.  «  See  §§  23,  24. 

'  People  V.  Gillson,  109  N.  Y.,  389.  ^  gge  §  25. 

'  This  was  the  point  in  Com.  v.  Perry,  above ;  and  see 
§  20. 

'»  See  §  21.  "  See  §  52. 

'«  McCulIough  V.  Brown,  19  S.  E.,  458. 

'.2  San  Antonio  &  A.  P.  Ry.  Co.  v.  Wilson,  19  S.  W.,  910; 
State  V.  Loomis,  22  S.  W.,  350. 


14  HANDBOOK    TO   TIIK    LABOR    LAW 

newspapers ;  "  laws  relating  to  actions  for  cattle 
killed,  because  they  applied  solely  to  railroads ;  '^ 
and  the  Supreme  Court  of  Pennsylvania  has  ex- 
pressed a  doubt  whether  a  statute  legalizing 
trade  combinations  is  not  unconstitutional,  be- 
cause it  does  not  in  terms  apply  to  employers  as 
well  as  employees ;  ^^  and  the  leading  decisions 
against  eight-hour  laws  went  partly  on  the 
gi'ound  that  the  laws  applied  to  factories  and 
workshops,  but  not  to  other  classes  of  laborers, 
or  not  to  farm  and  domestic  labor. '^  On  the 
other  hand,  a  statute  forbidding  attorneys-at- 
law  from  buying  promisory  notes  has  been  sus- 
tained.^^ 

Our  conclusion  must  be  that  laws  limiting  the 
natural  or  constitutional  rights  of  any  persons  or 
class  of  persons  are  generally  invalid,  unless  they 
can  be  sustained  under  the  police  power  of  the 
legislature,  as  defined  in  the  next  section  ;  and 
that  laws  which  apply  only  to  a  class  or  to  cer- 
tain persons  of  a  class,  may  be  invalid  also  be- 
cause class  legislation.^^  This  matter  is  more 
fully  discussed  in  §  11,  below. 

'*  Park  V.  Detroit  Free  Press  Co.,  72  Mich.,  560. 
•*  Atchison  &  N.  Ry.  v.  Baty,  6  Neb.,  39. 
'«  Cote  V.  Murphy,  159  Pa,  St.,  420.     See  post,  §  58. 
''  Ritchie  v.  Illinois,  155  111.,  98  ;  Low  v.  Rees  Printing  Co., 
59  N.  W.,  366.     See  post,  §  11. 

'«  People  V.  Walbridge,  3  Wend.,  120. 

"  New  York  Elevated  RR.  Cases,  70  N.  Y.,  at  p.  350. 


OF   THE    UNITED    STATES  15 

Finally,  it  should  be  noted  that  the  phrase 
"  obligation  of  contracts  "  has  in  the  state  and 
federal  constitutions  nothing  to  do  with  the 
freedom  of  contract  we  have  been  discussing. 
Nearly  all  our  state  and  the  national  constitu- 
tions expressly  forbid  the  passing  any  statute 
which  shall  have  effect  to  impair  the  obligation 
of  contracts  ;  but  this  only  applies  to  contracts 
actually  existing  at  the  time  any  such  law  is 
passed. 

§  3.  The  Employment  Contract — Freedom  of 
contract,  as  above  defined,  being  a  constitutional 
right,  it  follows  also  as  to  contracts  for  labor  or 
employment.  Furthermore,  this  has  been  fre- 
quently held  to  be  a  property  right  also,'  and  as 
such  would  be  further  protected  by  the  constitu- 
tions of  the  states  which  expressly  recognize  the 
right  to  property,-  without  the  necessity  of  recur- 
ring to  the  unwritten  constitution,  which,  how- 
ever, is  universally  recognized,  according  to 
Blackstone's  definition,  to  cover  at  least  the  three 
primary  individual  rights  of  personal  security, 
personal  liberty,  and  private  property.^  There- 
fore, in  a  double  way  the  freedom  of  the  labor 
contract  is  a  constitutional  right,  both  as  part  of 

'  State  V.   Goodwill,  33  W.  Va.,  179  ;  Low  v.  Rees  Print- 
ing Co.,  59  N.  W.,  362  ;  Ritchie  v.  Illinois,  155  111.,  98. 
**  See  §  2,  above. 
'  Blackstone's  Commentaries.  Book  I.,  Chap.  I.,  *129. 


16  HANDBOOK   TO   THE   LABOR   LAW 

man's  personal  liberty  and  as  necessarily  result- 
ing from  the  view  that  labor  is  property.  Other 
contracts,  perhaps,  rest  on  the  second  principle 
alone,  but  the  labor  contract  involves  also  the 
principle  of  personal  liberty,  and  might  remain 
though  private  property  were  abolished. 

In  England  the  freedom  of  the  labor  contract 
was  not,  during  some  centuries,  recognized.  In 
1349  (22d  Edward  III.)  and  1350  the  famous 
statutes  of  laborers  were  passed,  owing  to  a  scar- 
city of  laborers  caused  by  the  great  plague,  which 
provided,  substantially,  both  that  laborers  might 
be  compelled  to  work,  and  that  the  rate  of  wages 
should  be  legally  limited.  The  statute  of  labor- 
ers, after  the  insurrection  of  Wat  Tyler,  whereby 
all  laborers  were  declared  free  by  the  sovereign 
of  England,  became  inoperative  ;  but  later,  by  a 
statute  of  Queen  Elizabeth  *  all  persons  able  to 
work  as  laborers  or  artisans,  and  not  having  inde- 
pendent means,  might  be  compelled  to  agricultural 
labor,  and  the  hours  of  work  were  fixed,  and  the 
justices  given  power  to  fix  the  rate  of  wages,  and 
in  industrial  labor  all  persons  were  prohibited 
from  exercising  any  trade  without  first  serving 
an  apprenticeship  of  seven  years.  This  law, 
providing  for  a  legal  rate  of  wages,  made  it  ille- 
gal to  pay  higher  rates,  and  still  more  illegal  to 
combine^  for  the    purpose  of  exacting   higher 

*  5  Eliz.,  Chap.  4.  '  2  and  3  Edward  VI.,  Chap.  15. 


OF   THE    UNITED    STATES  17 

rates ;  as  did  a  still  earlier  statute  of  1549,  and 
this  English  law  lies  at  the  root  of  the  English 
doctrine  as  to  strikes  and  boycotts,  which  pre- 
vailed until  recent  statutes,  as  the  statute  of 
Elizabeth  was  not  formally  repealed  until  1875.^ 
But  in  the  United  States  this  statute  was  never 
in  force,  and  although  some  of  the  colonies — 
notably  Massachusetts  and  Virginia — attempted 
in  early  times  to  regulate  wages  and  the  hours 
of  labor,  such  ordinances,  passed  in  colonies 
which  were  practically  religious  or  feudal  oligar- 
chies, and  in  sympathy  with  the  English  prac- 
tice, have  no  weight  as  precedent  since  the 
Revolution. and  the  adoption  of  the  state  consti- 
tutions. In  the  United  States,  therefore,  the 
labor  contract  has  been  always  constitutionally 
free  in  the  same  manner  that  all  other  contracts 
under  the  general  growth  of  English  liberty  be- 
came free  by  the  common  law.  And  by  the  time 
Blackstone  Avrote,  the  freedom  in  England  also  of 
the  labor  contract,  except  in  the  special  matter 
of  apprenticeships,  was  practically  admitted  in 
general  cases. 

In  this  country  the  freedom  of  the  labor  con- 
tract has  been  certainly  always  recognized  since 
the  revolution.  "  Personal  liberty,  that  is,  the 
right  to  make  contracts  for  labor  for  others,  and 
to  employ  others  to  labor,  is  secured  by  consti- 

«  38  and  30  Vict.,  Chap.  86. 


18  HANDBOOK    TO   THE   LABOR   LAW 

tutional  law  to  all  members  of  this  state,  and 
the  right  is  inalienable."  "^  Laws  which  limited 
it,  or  even  regulated  it,  in  the  case  of  adult  citi- 
zens, have  been  commonly  annulled  by  the  courts 
as  unconstitutional  (see  §  2).  As  in  the  case  of 
ordinary  contracts  (see  §§  1,  2),  the  framers  of  our 
constitutions  thought  it  unnecessary  even  to  state 
it  expressly.  Only  three  state  constitutions 
touch  expressly  upon  the  subject,  and  they  are 
of  the  newest.** 

AYe  conclude,  therefore,  that  laborers  and  em- 
ployees on  the  one  hand,  and  masters  and  em- 
ployers on  the  other,  may  freely  make  with  each 
other  any  contract  they  choose,  not  criminal  or  im- 
moral, and  such  contract  will  be  valid  ;  and  gen- 

'  People  V.  Warren,  34  N.  Y.  Supp.,  p.  944;  In  re  Baker, 
29  How.  Prac,  485. 

*  "Every  citizen  of  this  State  shall  be  free  to  obtain  em- 
ployment wherever  possible."  North  Dakota  Const,  Art.  1, 
§23. 

"  No  law  shall  be  passed  fixing  the  price  of  manual  labor." 
La.  Const.,  Art.  49. 

"  The  rights  of  labor  shall  have  just  protection  through 
laws  calculated  to  secure  to  the  laborer  proper  rewards  for 
his  service  and  to  promote  the  industrial  welfare  of  the  State." 
Wy.  Const.,  Art.  1,  22. 

The  Western  Code  States  define  (and  hence  permit)  the 
labor  contract  by  express  statute  ;  thus  it  is  "a  contract  by 
which  one,  who  is  called  the  employer,  engages  another,  who 
is  called  the  employee,  to  do  something  for  the  benefit  of  the 
employer  or  a  third  person."  Cal.  Civ.  C,  1965;  Men.  Civ. 
C,  2650. 

This  definition  is  far  from  exhaustive. 


OF  THE   UNITED    STATES  19 

erally  speaking,  the  legislatures  have  no  right  to 
forbid  or  regulate  such  contracts  by  law  if  the 
parties  are  citizens  of  full  age.^  The  exceptions 
to  this  latter  principle  will  be  considered  in  the 
next  section  and  the  next  chapter. 

§  4.  The  Police  Power — This  right  to  make 
any  contract  not  immoral  nor  criminal  is  only 
limited  in  the  United  States  by  what  is  called 
"  the  police  power  of  government ; "  that  is,  the 
right  of  the  state  and  national  legislatures  to 
pass  any  laws,  although  regulating,  or  limiting, 
property,  contract,  or  personal  rights,  which  are 
clearly  necessary  to  the  safety,  comfort,  or  well- 
being  of  society.  It  rests  upon  the  legal  maxim 
that  a  man  must  so  use  his  own  i^property  or 
rights)  as  not  to  injure  others  (in  their  persons, 
property,  or  rights).  The  power  is  indefinite 
in  extent  and  incapable  of  definition  ;  though 
a  definition  has  often  been  attempted.  Text- 
books frequently  adopt  Judge  Shaw's  defini- 
tion,* that  it  is  "  the  power  vested  in  the  legis- 
lature by  the  constitution  to  make,  ordain,  and 
establish  all  manner  of  wholesome  and  reason- 
able laws,  statutes,  and  ordinances,  either  with 
penalties  or  without,  not  repugnant  to  the  con- 
stitution, as  they  shall  judge  to  be  for  the  good 
and  welfare   of   the  commonwealth,  and  of  the 

•Low  V.  Rees  Printing  Co  ,  59  N.  W.,  362. 

'  CoJimonwealtb  v.  Alger,  7  Cusliing,  53,  at  pp.  84,  85. 


20  HANDBOOK    TO   THE   LABOR   LAW 

subjects  of  the  same  " — not  observing  that  this 
broad  statement  of  the  poAver  may  have  been 
based  upon  the  peculiar  provision  of  the  Massa- 
chusetts constitution  (discussed  ante,  §  1)  and 
therefore  be  no  authority  for  other  states.  How- 
ever, as  Judge  Shaw  adds,  "  It  is  much  easier 
to  perceive  and  realize  the  existence  and  sources 
of  this  power  than  to  mark  its  boundaries  or 
prescribe  limits  to  its  exercise." 

This  much  is  clear,  that  the  power  "  is  not 
above  the  constitution,  but  is  bounded  by  its 
provisions ;  and  if  any  liberty,  or  franchise,  is 
expressly  protected  by  any  constitutional  pro- 
vision, it  cannot  be  destroyed  by  any  valid  ex- 
ercise by  the  legislature,  or  by  the  executive,  of 
the  police  power ;  "  and  "  if  the  legislature  shall 
determine  what  is  a  proper  exercise  of  its  police 
power,  the  decision  is  subject  to  the  scrutiny  of 
the  courts."^  And  the  object  of  the  law  must 
really  be  such  health  and  safety  of  society,  and 
its  measures  must  have  a  visible  relation  to  that 
end  ;  the  law  will  not  allow  property  or  personal 
rights  to  be  invaded  under  the  guise  of  a  police 
regulation  for  the  protection  of  health,  or  safety, 
when  it  is  manifest  the  real  object  is  something 
different.^ 

'^  People  V.  Gillson,  109  N.  Y.,  at  p.  400  (differing  here 
from  the  questions  of  the  "reasonableness"  of  a  law,  dis- 
cussed in  §  1,  note  5,  above). 

3 Low  V.  Rees   Printing  Co.,  59  N.  W.,  368  ;  Re  Jacob.s 


OF   THE    UNITED    STATES  21 

The  various  instances  in  Avbicli  laws  regulating 
the  employment  contract  have  been  held  uncon- 
stitutional, or  constitutional,  under  the  police 
power,  form  the  special  subject  of  the  next 
chapter.  The  best  way  to  define  the  police 
power  generally  is  to  mention  a  few  of  the  prin- 
cipal subjects  in  which  it  has  been  maintained. 
These  are  health  regulations ;  laws  defining  pub- 
lic nuisances  and  regulating  noxious  trades ; 
building  laws ;  liquor  laws ;  ^  Sunday  laws  ;  road, 
highway,  and  street  regulations  ;  wharf,  levee, 
and  drainage  laws ;  and  laws  regulating  charges 
of  persons,  or  corporations  in  employments  "  af- 
fected with  a  public  interest,"  ^  or  which  enjoy 
from  the  public  special  rights,  privileges,  grants, 
or  monopolies  ;  and  in  the  domain  of  labor,  gen- 
eral factory  regulation.  More  questionable,  in 
America  at  least,  are  laws  imposing  restrictions 
upon  dealings  with  classes  of  persons,  not  minors, 
or  women,  supposedly  unable  to  protect  them- 
selves, such  as  regulations  governing  minors, 
intelhgence-offices,  etc.  The  exception  of  laws 
protecting  sailors  comes  hardly  under  the  police- 
power  doctrine,  but  rather  from  ancient  custom 
coeval  with  the  unwritten  constitution  itself  ;  and 
the  same  may  be  said  of  the  laws  against  usury. 

98  N.  Y.,  98  ;  Austin  v.  Murray,  IG  Pick.,    121,  at  p.  126  ; 
Watertown  v.  Mayo,  109  Mass.,  315. 

*Mugler  V.  Kansas,  123  U.  S.,  624. 

"People  V.  Budd,  117  N.  Y.,  1, 


2"J  HANDBOOK    TO   THE    LABOR   LAW 

But  the  branch  of  the  police-power  doctrine 
iinder  which  the  greatest  modern  extension  has 
happened,  and  the  greatest  future  growth  may 
be  expected,  peculiarly  in  laws  afiecting  labor, 
or  the  employment  relation,  is  that  of  fraud  ; 
the  doctrine  by  which  laws  are  justified  which 
interfere  with  private  rights  in  order  to  prevent 
a  prevailing  fraudulent  imposition  on  the  public 
generally,  or  upon  any  definite  class  of  persons. 
Such  are  laws  which  require  the  employer  to 
give  the  same  notice  of  discharge  to  his  em- 
ployees that  he  requires  of  them  ;  ^  laws  forbid- 
ding the  screening  of  coal  before  weighing,  to 
determine  the  miners'  wages  ;^  the  laws  against 
adulterations  of  food,  or  imitations,  like  oleo- 
margai'ine  ;  ^  and  laws  giving  a  special  protec- 
tion to  claims  for  wages,  or  priority  to  labor 
liens.^ 

§  5.  Intimidation  and  Interference  with  the 
Employment  Contract,  Trades,  and  Lawful  Occu- 
pations.— It  results    dii'ectly   from   the   general 

'  See  §  22.  '  See  §  25. 

» Palmer  v.  State,  39  O.  St.,  236  ;  Commonwealth  v. 
Waite,  11  Allen,  264  ;  Shivers  v.  Newton,  16  Vroom,  469  ; 
State  V.  Campbell,  64  N,  H.,  402  ;  State  v.  Marshall,  64 
N.  H.,  549  ;  Weideman  v.  State,  56  N,  W.,  688.  It  must  be 
noted  that  such  laws,  if  the  commodity  be  harmless,  may,  how- 
ever, be  unconstitutional  as  an  interference  with  the  inter- 
state commerce.     Re  Worthen,  58  F.  R.,  467. 

'  §§  34-37. 


OF   THE   UNITED   STATES  23 

freedom  of  the  labor  contract  (§  3)  that  any  at- 
tempt, even  of  a  single  iudividual,  by  violence, 
intimidation,  or  threats  of  injury  to  person  or 
property,  to  control  such  employment  contract, 
to  prevent  a  man  from  working,  or  an  employer 
from  employing,  or  to  obstruct  or  molest  either 
party  to  a  contract  of  employment  in  making  it 
or  carrying  it  out  when  made,  is  a  civil  wrong 
for  which  either  party,  if  injured,  may  recover 
damages.  Such  is  the  law  in  the  absence  of  any 
statute,  both  in  England  and  this  country.^  But 
it  is  not,  in  the  absence  of  statute,  a  criminal  of- 
fence, unless  it  be  more  than  a  threat  or  mere 
civil  trespass,  and  amounts  to  an  assault  or  crimi- 
nal destruction  of  property.  In  many  states, 
however,  as  in  England,  it  is  made  a  criminal 
offence  by  statute.  If  the  acts  or  threats  are 
committed  as  part  of  a  combination  of  two  or 
three  or  more  persons  for  the  purpose  of  so  inter- 
fering with  the  employment  contract  or  its  car- 
rying out,  the  law  is  much  stricter  ;  in  such  cases 
even  moral  intimidation,  such  as  ridicule,  or  per- 
suasion to  break  or  not  to  make  the  employment 
contract,  may  suffice  to  make  the  parties  there- 
to guilty  of  conspiracy  (see  Chapter  VIII.,  on 
Trade  Conspiracies  and  Boycotts,  and  §  59). 


'  Carew  v.  Rutherford,  106  Mass.,  1.  This  law  seems  to 
apply  even  to  intimidation  of  persons  trading  with  the  plain- 
tiff.    Tarleton  v.  McGawley,  Teak  N.  V.  C,  270. 


"■24  HANDBOOK   TO   THE   LABOR  LAW 

Thus,  in  New  Englaud,  Indiana,  Illinois, 
Wisconsin,  Missoiu'i,  Oregon,  the  Dakotas, 
Montana,  South  Carolina,  Georgia,  Alabama, 
and  Texas  it  is  made  by  statute  a  crime  or  mis- 
demeanor to  prevent  or  seek  to  prevent  by  force, 
threats,  or  intimidation  any  person  from  enter- 
ing into  or  continuing  in  the  employment  of  any 
other  person  or  corporation,  or  (in  Maine,  Ver- 
mont, Illinois,  Oregon,  the  Dakotas,  Montana, 
Oklahoma,  and  Georgia)  the  employer  from  em- 
ploying, or  any  person  (in  New  Hampshire,  Illi- 
nois, Montana,  Georgia,  Wisconsin,  Oklahoma, 
and  Alabama)  from  carrying  on  any  lawful  trade 
or  calling,  as  by  interfering  (in  Illinois,  New 
York,  Minnesota,  Montana,  Georgia)  with  a  per- 
son's tools  or  other  property  and  the  use  there- 
of. Or,  in  Oregon,  Dakota,  and  Oklahoma,  to 
compel  another  to  employ  any  person,  or  to  force 
or  induce  another  to  alter  his  mode  of  carrying 
on  business,  or  to  limit  or  increase  the  number  of 
persons  employed  by  him,  or  their  rate  of  wages 
or  term  of  seiwice.  While  in  the  New  York  law, 
followed  also  in  Connecticut  and  Minnesota,  it 
is  made  a  misdemeanor  to  use  or  attempt  the 
intimidation  by  threats  or  force  of  any  person 
from  doing  or  abstaining  from  any  act  which 
such  person  has  a  legal  right  to  do  or  abstain 
from  doing,  as  by  depriving  him  of  his  tools, 
clothing,  or  implements.  And  finally,  in  North 
Dakota,  there  is  a  constitutional  provision  that 


OF   THE   UNITED    STATES  25 

"  any  person,  coi-poration  or  agent  thereof,  mali- 
ciously interfering  or  hindering  in  any  way,  any 
citizen  from  obtaining  or  enjoying  employment 
already  obtained,  from  any  other  corporation 
or  person,  shall  be  deemed  guilty  of  a  misde- 
meanor." 2 

There  are,  further,  in  several  states  important 
statutes  specially  forbidding  intimidation  or  in- 
terference with  the  employment  contract,  in  cer- 
tain occupations  where  it  would  be  dangerous  to 
the  public,  such  as  railways,  etc.,  or  even  in  gen- 


«N.  H.,  266,  12;  Mass.,  1894,  508,  2;  Me.,  1889,  303; 
1891,  127;  Vt.,  5041,  5042;  R.  I.,  241,  8;  Ct.,  1518;  N.  Y. 
P.  C,  653;  Ind.  R.  S.,  2126  (this  does  not  appear  in  the 
new  revision,  and  is  perhaps  repealed) ;  111.,  R.  S.,  Chap.  38, 
207;  Wis.,  1887,  427,  1;  Minn.  P.  C,  490;  Mo.,  3783;  Ore., 
Hill,  1893;  N.  D.  and  S.  D.  P.  C,  733,  734;  Mon.  Crim. 
L.,  252  (does  not  appear  in  new  revision) ;  Ga.,  1887,  p.  107 ; 
Ala.,  3763;  Tex.,  1887,  18;  Okla.,  1893,  2544,  2545. 

In  Michigan  the  statute  appears  to  be  limited  to  mechanics 
or  laborers;  it  reads:  "If  any  person  or  persons  shall,  by 
threats,  intimidations,  or  otherwise,  and  without  authority  of 
law,  interfere  with,  or  in  any  way  molest,  or  attempt  to  in- 
terfere with,  or  in  any  way  molest  or  disturb,  without  such 
authority,  any  mechanic  or  other  laborer,  in  the  quiet  and 
peaceable  pursuit  of  his  lawful  avocation,  such  person  or  per- 
sons shall  be  deemed  guilty  of  a  misdemeanor,  punishable  by 
fine  of  one  hundred  dollars,  or  imprisonment  for  one  year,  or 
both."     Mich.,  Howell,  9273. 

For  interpretation  of  such  statutes,  see  the  English  cases 
generally  (§§  55,  57),  and  Commonwealth  v.  Dyer,  128 
Mass.,  170.     X.  D.  Const.,  Art.  1,  23. 


26  HANDBOOK   TO   THE   LABOR   LAW 

eral  occupations  (see  §  62),  and  in  Illinois  the 
statute  takes  special  notice  of  coal  mines.^ 

Enticing  Labor. — At  the  common  law  a  person 
enticing  away  another's  servant  into  his  own 
ser\ace  might  be  liable  for  an  action  for  dam- 
ages ;  and  there  are  in  a  few  southern  states 
statutes  upon  the  subject  making  it,  in  some 
cases,  a  misdemeanor,  and  imposing  single  or 
double   damages  upon  the  guilty  party ;  *   and 


^  "  Whoever  enters  a  coal  bank,  mine,  shaft,  manufactory, 
building,  or  premises  of  another,  with  intent  to  commit  any 
injury  thereto  or  by  means  of  threats,  intimidation,  or  riotous 
or  other  unlawful  doings,  to  cause  any  person  employed 
therein  to  leave  his  employment,  shall  be  fined  not  exceeding 
five  hundred  dollars,  or  confined  in  the  county  jail  not  ex- 
ceeding six  months,  or  both."     111.,  38,  208. 

"  Whoever,  without  authority  of  law  and  not  being  the  own- 
er or  agent  of  adjoining  lands,  enters  the  coal  bank,  mine, 
shaft,  manufactory,  or  place  where  workmen  are  employed, 
of  another,  without  the  expressed  or  implied  consent  of  the 
owner  or  manager  thereof,  after  notice  that  such  entry  is  for- 
bidden, shall  be  fined  not  exceeding  two  hundred  dollars,  or 
confined  in  the  county  jail  not  exceeding  six  months,  in  the 
discretion  of  the  court."     111.,  38,  324. 

*  Thus,  in  Mississippi,  and  Florida,  Kentucky,  Arkansas, 
and  Louisiana,  "If  any  one  shall  wilfully  interfere  with,  en- 
tice away,  knowingly  employ,  or  induce  a  laborer,  "  cropper," 
or  renter  who  has  contracted  with  another  for  a  specified 
time,  to  leave  his  employer  or  the  leased  premises,  before  the 
expiration  of  his  or  her  contract,  without  the  consent  of  the 
employer,  he  shall  be  guilty  of  a  misdemeanor."  (Ky., 
1349;  Ark.,  4792;  Miss.,  1068;  Fla.,  2405;  La.,  1892,  50.) 
And  in  Mississippi  and  Arkansas,  "  upon  conviction  he  shall 


OF   THE   UNITIin)   STATES  27 

the  provisions  of  the  law  would  seem  to   ex- 
tend  to   any  person   so   persuading  a  laborer 


be  fined  in  any  sum  not  less  than  twenty  -  five  dollars  nor 
more  than  one  hundred  dollars;  in  addition  to  such  fine  be 
shall  be  liable  to  the  employer  or  landlord  in  double  the 
amount  of  damages  which  he  or  she  may  sustain  by  reason  of 
such  breach  of  contract ;  "  but  in  Kentucky  he  is  liable  only 
in  actual  damages. 

In  South  Carolina,  "  Any  person  who  shall  entice  or  per- 
suade, by  any  means  wliatsoever,  any  tenant,  servant,  laborer 
under  contract  with  another,  duly  entered  into  between  the 
parties  in  the  presence  of  one  or  more  witnesses,  whether 
such  contract  be  verbal  or  in  writing,  to  violate  such  contract, 
or  shall  employ  any  laborer,  knowing  sucli  laborer  to  be  im- 
der  contract  with  another,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  upon  conviction,  shall  be  fined  not  less  than 
twenty-five  nor  more  than  one  hundred  dollars,  or  be  im- 
prisoned in  the  county  jail  not  less  than  ten  nor  more  than 
thirty  days."     S.  C,  2479. 

In  Georgia,  "  If  any  person,  by  himself  or  agent,  shall  be 
guilty  of  employing  the  servant,  cropper,  or  farm  laborer  of 
another,  under  a  written  contract,  which  shall  be  attested  by 
one  or  more  witnesses,  during  the  term  for  which  he,  she  or 
they  may  be  employed,  knowing  that  such  servant,  cropper, 
or  farm  laborer  was  so  employed,  and  that  liis  term  of  ser- 
vice was  not  expired ;  or  if  any  person  or  persons  shall  entice, 
persuade  or  decoy,  or  attempt  to  entice,  persuade  or  decoy 
any  servant,  cropper,  or  farm  laborer,  whether  under  a  writ- 
ten or  parol  contract,  after  he,  she  or  they  shall  have  actually 
entered  the  service  of  his  or  her  employer,  to  leave  his  em- 
ployer, either  by  offering  higher  wages,  or  any  way  whatever, 
during  the  term  of  service,  knowing  that  said  servant,  cropper, 
or  farm  laborer  was  so  employed,  shall  be  deemed  guilty  of  a 
misdemeanor."     Ga..  4500,  am'd. 

In  Alaliama.  ''  Any  person  who  knowingly  interferes  with. 


28     '     IIAXDBOOK   TO   THE   LABOR   LAW 

or    servant    to    break    his    contract,    whether 
he  emplo}'^  the  laborer  in  his  own  service  or 


hires,  employs,  entices  away,  or  induces  to  leave  the  service 
of  another,  or  attempts  to  hire,  employ,  entice  away,  or  in- 
duce to  leave  the  service  of  another,  any  lahorer  or  servant 
who  has  contracted  in  writing  to  serve  such  other  person  for 
any  given  time,  not  to  exceed  one  year,  before  the  expiration 
of  the  time  so  contracted  for,  or  who  knowingly  interferes 
with,  hires,  employs,  entices  away,  or  induces  any  minor  to 
leave  the  service  of  any  person  to  whom  such  service  is  law- 
fully due,  without  the  consent  of  the  party  employing,  or  to 
whom  such  service  is  due,  given  in  writing,  or  in  the  presence 
of  some  creditable  person,  must,  on  conviction,  be  fined  not 
less  than  fifty  nor  more  than  five  hundred  dollars,  at  the  dis- 
cretion of  the  jury,  and  in  no  case  less  than  double  the  dam- 
ages sustained  by  the  party  whom  such  laborer  or  servant 
was  induced  to  leave ;     .     .     . 

"  When  any  laborer  or  servant,  having  contracted  as  pro- 
vided in  the  preceding  section,  is  afterward  found  in  the 
service  or  emplojTiient  of  another  before  the  termination  of 
such  contract,  that  fact  is  prima  facie  evidence  that  such  per- 
son is  guilty  of  a  violation  of  that  section,  if  he  fail  aud  re- 
fuse to  forthwith  discharge  such  laborer  or  servant,  after 
being  notified  and  informed  of  such  former  contract  or  em- 
ployment. 

"  Any  person  who  employs  any  immigrant,  or  otherwise  en- 
tices him  from  his  employer,  in  violation  of  the  contract  of 
such  immigrant,  must,  on  conviction,  be  fined  in  a  sum  not 
less  than  the  amount  of  wages  for  the  unexpired  term  of  the 
contract,  and  may  be  imprisoned  in  the  county  jail,  or  sen- 
tenced to  hard  labor  for  the  county,  at  the  discretion  of  the 
jury,  for  not  more  than  three  months."  Ala.,  3757,  3758, 
3761. 

In  Tennessee.  ''It  shall  not  be  lawfi;l  for  any  person  in 
this  state  knowingly  to  hire,  contract  with,  decoy  or  entice 


OF   THE    UNITED    STATES  29 

not.'  Thus,  an  early  Nortli  Carolina  case "  de- 
cided that  a  person  who  so  entices  one  who  has 
contracted  to  render  personal  service  to  the 
plaintiff,  for  a  consideration  however  slight,  and 
even  though  under  an  unreasonable  contract,  is 
liable  in  damages.  But  there  must,  in  modern 
law,  be  a  contract ;  no  action  lies  against  an 
individual  for  persuading  a  servant  to  leave  at 
the  end  of  his  term,  or  if  under  no  contract.^ 

§  6.  The  Enforcement  of  the  Labor  Contract. — 
The  labor  or  employment  contract  is,  however, 
subject  to  one  great  exception  from  the  law  gov- 
erning other  contracts,  and  that  is  that  it  can 
never   be   enforced  in   courts   of   equity.     The 


away,  directly  or  indirectly,  any  one,  male  or  female,  who  is 
at  the  time  under  contract  or  in  the  employ  of  another. 

"  Any  person  violating  the  provisions  of  the  above  section 
shall  be  liable  to  the  party  who  originally  was  entitled  to  the 
services  of  said  employee,  by  virtue  of  a  previous  contract, 
for  such  damages  as  he  may  reasonably  sustain  by  the  loss  of 
the  labor  of  said  employee ;  and  he  shall  also  be  liable  for  such 
damages,  whether  he  had  knowledge  of  an  existing  contract 
or  not,  if  he  fails  or  refuses  to  discharge  the  person  so  hired, 
or  to  pay  such  damages  as  the  original  employer  may  claim, 
after  he  has  been  notified  that  the  person  is  under  contract  or 
has  violated  the  contract  with  another  person."  Tenn.,  3438, 
3439. 

*  Carew  v.  Rutherford,  106  Mass.,  1. 

'  Haskins  v.  Royster,  70  N.  C,  001. 

'  Boston  Glass  Co.  v.  Binney,  4  Tick.,  425 ;  Bowen  v. 
Matheson,  14  Allen,  49'J. 


30  HANDBOOK    TO    THK    LABOH    LAW 

specific  perforiuiiuce  of  all  other  contracts  will 
be  granted  in  proper  cases ;  but  the  English 
Court  of  Chancery,  followed  by  all  United 
States  Courts,  has  consistently  refused  to  enforce 
the  contract  for  labor  or  personal  service.  In 
the  absence  of  exjiress  statute,  the  only  remedy 
of  the  employer  lies  in  an  action  for  damages 
against  the  employee.  He  may  however  get  an 
injunction  against  his  servant  or  employee  from 
working  for  others,  in  breach  of  his  contract 
with  him.' 

The  reason  of  this  is  obvious.  The  contract 
of  service  is  by  its  nature  indefinite  in  its  terms, 
and  deals  not  with  goods  or  commodities  in  the 
ordinary  sense,  but  with  a  man's  self,  his  abili- 


'  It  is  unnecessary  to  cite  cases  on  this  point,  but  the  one 
usually  referred  to  is  that  of  Lumley  v.  Wagner,  1  De  G.,  M. 
&  G.,  604.  The  principle  was  well  discussed  and  sustained 
in  the  case  of  Mary  Clark,  1  Blackford,  Ind.,  122,  where  an 
emplojer  endeavored  to  enforce  a  contract  for  twenty  years' 
service  made  by  a  mulatto  woman. 

But  the  western  codes  have  this  peculiar  provision : 
"  A  contract  to  render  personal  service,  other  than  a  con- 
tract of  apprenticeship,  .  .  .  can  not  be  enforced  against 
the  employee  beyond  the  term  of  two  years  from  the  com- 
mencement of  service  under  it ,  but  if  the  employee  volunta- 
rily continues  his  service  under  it  beyond  that  time,  the 
contract  may  be  referred  to  as  affording  a  presumptive  meas- 
ure of  the  compensation."  Cal.  Civ.  C,  1980;  Mon.  Civ. 
C,  2675 ;  it  would  appear  from  the  above  that  the  contract 
mat/  be  enforced  specifically  during  the  two  years.  See  also 
§  9,  below. 


OF   THE    UXITED    STATES  31 

ties,  or  his  person.  To  enforce  such  a  contract 
against  a  person's  will  would  be  too  much  like 
enforcing  a  contract  of  slavery.  The  English 
and  American  courts,  therefore,  both  wisely  and 
humanely,  have  always  granted  this  special  priv- 
ilege to  laborers  and  servants,  and  even  to  em- 
ployees :  that  they  would  not  enforce  their 
contracts  against  them  specifically,  but  only 
allow  the  master  or  employer  a  suit  for  damages, 
which  in  most  cases  is  no  remedy.  The  contract 
may,  however,  be  enforced  against  the  employer, 
even  specifically  ;  that  is,  the  employee  doing  or 
offering  to  do  the  work  may  recover  his  wages. 
The  labor  or  employment  contract,  therefore, 
rests  in  this  jDeculiar  condition,  that  it  is  the 
only  contract  known  to  the  law  which  is  practi- 
cally open  to  one  party  to  break,  but  not  to  the 
other. 

Whether  the  employer  has  any  remedy  against 
a  simultaneous  breaking  of  the  employment 
contract  by  a  number  of  persons  upon  precon- 
certed agreement,  will  be  considered  later  in 
the  chapter  upon  strikes  (§  55). 

There  has,  however,  been  a  recent  tendency  in 
the  federal  courts  of  the  United  States,  mainly 
as  a  consequence  of  the  Anti-Trust  Act  of  1890, 
and  the  Interstate  Commerce  Law  of  1887,  to 
enforce  by  equity  process  the  performance  of 
the  contract  of  employment  by  large  bodies  of 
persons,  such  as  railway   employees    or   steve- 


3:2  HANDBOOK   TO   THE   LABOR   LAW 

doi*es,  who  are  engaged  in  transporting  or  hand- 
ling articles  the  subject  of  interstate  commerce. 
The  most  notable  instance  is,  perhaps,  the  case 
of  the  Southern  California  Railway  v.  Ruther- 
ford,- in  which  Judge  Ross,  of  the  U.  S.  District 
Coiu't  for  California,  upon  a  bill  alleging  that 
the  employees  of  a  railroad  company,  not  hav- 
ing formally  quitted  their  employment,  refused 
to  perform  their  diities  of  operating  its  trains, 
gi'anted  an  injunction  requiring  the  defendants 
to  perform  all  of  their  regular  and  accustomed 
duties  '*  so  long  as  they  remain  in  the  employ- 
ment of  the  complainant  company."  This  de- 
cision, so  far  as  it  rests  upon  the  contract  of 
service,  seems  open  to  criticism.  The  ordinary 
doctrine  that  courts  of  equity  will  not  enforce 
employment  contracts  does  not  seem  to  have 
been  present  in  the  court's  mind,  and  there 
would  appear  no  tenable  distinction  between 
enforcing  an  employment  contract  specifically 
and  getting  a  mandatory  injunction  upon  em- 
ployees to  perform  all  the  duties  of  such  em- 
ployment until  such  time  as  they  chose  to  leave 
the  employment.  When  a  servant  refuses  to 
obey  the  directions  of  the  master,  the  master's 
only  remedy  is  to  discharge  him,  and  then  sue 
for  damages  if  he  thinks  it  worth  while.  In  so 
far  as  Judge  Ross's  decision  rests  on  the  pecul- 

«  62  F.  R.,  79G. 


OF   THE    UNITED    STATES  33 

iar  provisions  of  the  Auti-Trust  Act,  that  is,  on 
the  ground  that  the  defendant  employees  were 
conspiring  to  hinder  interstate  commerce,  it  may 
be  sustained ;  but  this  matter  will  be  discussed 
more  fully  hereafter. 

There  are,  however,  a  few  state  statutes  de- 
fining the  labor  contract  and  prohibiting  viola- 
tions of  it.  Thus,  in  Louisiana,  "  Whoever  shall 
wilfully  violate  a  contract  upon  the  faith  of 
which  money  or  goods  have  been  advanced  and 
without  first  tendering  to  the  person  from  whom 
said  money  or  goods  were  obtained  the  amount 
of  money  or  value  of  the  goods,  shall  be  deemed 
guilty  of  a  misdemeanor."  ^ 

In  Arkansas,  "  If  any  laborer  shall,  without 
good  cause,  abandon  his  employer  before  the 
expiration  of  his  contract,  he  shall  be  liable  to 
such  employer  for  the  full  amount  of  any  ac- 
count he  may  owe  him,  and  shall  forfeit  to  his 
employer  all  wages  or  share  of  crop  due  him,  or 
which  might  become  due  him  from  his  em- 
ployer.^ 

In  Tennessee,  "  Any  persons  so  under  contract 
or  employ  of  another,  leaving  their  employ  with- 
out good  and  sufiicient  cause,  before  the  expira- 
tion of  the  time  for  which  they  Avere  employed, 
shall  forfeit  to  the  employer  all  sums  due  for 
service  already  rendered,  and  be  liable  for  such 

'  La.,  1890,  138,  1.  *  Ark.,  4790. 


[U  HANUl'.OOK    TO    THK    LAHOll    LAW 

other  damages  the  employer   may   reasonably 
sustain  by  such  violation  of  contract."  ^ 

In  England  also  a  recent  statute  had  pro- 
vided a  summary  remedy  for  breach  of  contract 
or  refusal  to  work  by  laborers  in  certain  specified 
employments,  by  which  servants,  apprentices, 
and  factory  employees  can  bo  brought  before  a 
magistrate,  who  may  either  abate  the  wages  due, 
or  direct  the  fulfilment  of  the  contract  of  service, 
and  require  recognizance  therefor  and  commit 
the  employee  to  jail,  for  a  term  not  exceeding 
three  months,  in  case  he  fail  to  comply  there- 
with. The  effect  of  this  provision  is  to  make 
such  breach  of  the  employment  contract  a  penal 
offence  in  England,  and  for  that  reason  the 
leading  case  of  Reg.  v.  Bunn^  was  decided. 
With  the  exception  of  the  few  statutes  above 
cited,  there  is  no  such  law  in  this  country. 

§  7.  Breach  of  the  Employment  Contract  not 
Criminal.— As  the  breach  of  the  employment 
contract  only  renders  the  employee  liable  in 
damages,  and  does  not  subject  him  to  specific 
performance  in  a  court  of  equity,  so  it  can  never 
be  a  criminal  offence  in  the  absence  of  such 
special  statutes  as  those  mentioned  in  the  last 
section  ;  and  not  being  a  criminal  offence  on  the 
part  of  an  individual,  it  is  not  a  criminal  offence 

»  Tenn.,  3438.  •  12  Cox  C.  C,  316. 


OF    THE    UlS'ITED    STATES  35 

on  tlie  part  of  any  number ;  that  is,  the  mere 
lea^'ing  employment  of  a  large  number  of  work- 
men, simultaneously  or  successively,  in  itself 
can  never  subject  them  to  criminal  punish- 
ment. When  they  combine  by  preconcerted  ar- 
rangement to  leave  at  the  same  time,  certainly 
when  such  combination  is  for  the  purpose  of  in- 
juring the  employer  or  any  other  person,  such 
combination  may  become  punishable  as  a  con- 
spiracy ;  but  in  such  case  it  is  not  the  leaving 
service  that  is  punished,  but  the  combination  or 
conspiracy  to  injure  the  employer  by  so  leaving. 
This  matter  will  be  fully  discussed  in  Chapter 
VIIL,  §§  51,  55.  If,  however,  the  employees 
are  all  under  contract  to  work  for  a  certain 
period  of  time,  then  the  combination  merely  to 
break  such  contract  without  intent  to  do  any 
other  injury  may  also  become  an  unlawful  con- 
spiracy.^ In  most  cases,  however,  of  industrial 
occupations,  the  employment  of  the  operative  is 
an  indefinite  one  as  to  time.  He  may  leave  at 
any  time  without  committing  a  technical  breach 
of  contract ;  and  hence  may  combine  with  other 
workmen  to  leave  work  at  any  time  without 
thereby  committing  an  unlawful  conspiracy. 

§  8.    Discharge   or  Termination  of  the  Labor 
Contract  by  the  Employer. — Where  there  is  no 

'  Reg.  V.  Bunn,  12  Cox  C.  C,  316. 


SG  IIAXDBOOK    TO    THK    LABOII    LAW 

determinate  period  of  service,  the  employment 
contract  may,  of  coni'se,  be  ended  by  the  em- 
ployer also  at  any  time  and  without  giving  any 
claim  to  the  employee  for  damages.  Whether 
the  mere  fact  that  wages  are  paid  regularly  at 
certain  terms,  such  as  weekly  or  monthly,  re- 
quires a  notice  equal  to  such  period  of  payment, 
is  not  so  clear.  In  domestic  service,  by  custom 
or  otherwise,  the  law  has  usually  so  settled  it ; 
but  in  ordinary  industrial  employment,  it  Avould 
seem  that  the  employer  may  discharge  at  any 
date  upon  payment  of  wages  due  up  to  that 
time.  As  a  matter  of  custom  a  reasonable  no- 
tice is  usually  given. 

But  there  are  in  some  states  statutes  requir- 
ing notice  of  discharge  from  the  employment  in 
cases  where  a  notice  of  leaving  service  is  re- 
quired by  special  contract  from  the  employee. 
Such  statutes  will  be  fully  discussed  under 
§22. 

Where,  however,  the  express  contract  of  em- 
ployment is  for  any  definite  period,  or  from  term 
to  term,  the  employer  may  not  discharge  the 
employee,  except  for  his  misconduct,  without 
becoming  liable  in  damages  for  the  breach  of 
contract,  and  such  damages  may  either  be  com- 
puted at  the  full  amount  of  the  wages- which 
would  accrue  if  the  employees  served  out  the 
entire  contract,  or  at  the  difference  between 
such  amount  and  the  wages  he  might  actually 


OF   THE   UNITED   STATES  37 

earn  in  other  employments.  This  latter  question 
is  for  the  jury. 

The  nature  and  amount  of  fault  on  the  part 
of  the  employee  that  would  justify  the  employer 
in  putting  an  end  to  the  contract  is  somewhat 
indeterminate.  Under  some  cases  it  would  be 
a  question  of  fact  for  the  jury.  Where,  how- 
ever, there  is  an  express  agreement  that  the 
work  must  be  done  to  the  employer's  satisfac- 
tion, the  employer  is  the  sole  judge  of  the  suf- 
ficiency of  such  work,  and  may  discharge  for 
bad  work  at  his  own  discretion.^ 

Statutes,  however,  are  beginning  to  be  passed 
aimed  at  preventing  arbitrary  discharge  by  cor- 
poration employers ;  thus  in  Massachusetts 
"  railroad,  express,  and  telegraph  companies  are 
required  to  furnish  any  discharged  employee 
with  a  written  statement  of  the  causes  thereof  "  ^ 
(see  §  61,  Blacklisting) ;  or  at  preventing  dis- 
charge for  membership  in  labor  unions  (see 
§  52). 

An  employee  may  have- an  action  for  damages 
against  a  person  causing  his  discharge,  though 
under  an  indefinite  contract,  by  refusing  to 
furnish  his  employers  with  a  side  track  from  a 
railroad  of  which  the  defendant  was  manager.^ 
But  in  these  cases  the  threat  or  efifort  to  obtain 


'  Koehler  v.  Buhl,  94  Mich.,  496.  '  Mass.,  1892,  382. 

»  Chipley  v.  Atkinson,  1  So.  Rep.,  934. 


;^S  HANDBOOK    TO    THE    LABOR    LAW 

defendant's   discharge   must   be   successful.     A 
mere  threat  is  not  sufficient.^ 

§  9.  Of  the  Duties  of  the  Employee  ;  Terms  of 
the  Contract ;  Slavery.  (Compare  §  49.) — As 
has  been  said  in  §  6,  while  the  duties  of  the  em- 
ployee are  to  carry  out  in  full  the  contract  of 
work  for  Avhich  he  is  employed,  the  employer 
has  no  remedy  if  he  fail  in  the  same  other  than 
by  discharging  the  workman  and  suing  him  for 
damages ;  but  this  latter  remedy  is  rarely  em- 
ployed.' A  contract  for  any  definite  employ- 
ment requiring  only  certain  prescribed  duties, 
or  a  part  of  the  employee's  time,  may  probably 
be  made  for  any  period  of  years,  though  this  is 
rarely  the  case  except  in  case  of  skilled  business 
men,  overseers,  or  master  workmen  whose  ser- 
vices are  paid  for  by  an  actual  salary,  or  a  percent- 
age of  the  profits,  or  by  commission  on  the  busi- 
ness they  bring.  In  the  case  of  general  service, 
however,  such  as  domestic  or  farm  labor,  which 
involves  the  residence  of  the  employee  or  ser- 
vant with  the  master,  it  is  probable  that  a  con- 

*  Paj-ne  v.  R.  R.  Co.,  13  Lea,  507. 

'  An  interesting  case  where  it  was  employed  is  Bowes  v. 
Press  (1894),  70  L.  T.  R.,  116,  where  the  contract  provided 
for  two  weeks'  mutual  notice  of  termination.  Without  such 
notice  a  miners'  union  gave  notice  they  would  not  descend  in 
cages  with  non-union  men,  and  twenty  days  thereafter  re- 
fused to  do  so.  The  employers  were  held  entitled  to  sub- 
stantial (5  shillings)  damages  against  all  who  so  refused. 


OF   THE   UNITED   STATES  39 

tract  for  a  long  period  of  years  or  for  life  would 
not  be  sustained  by  the  courts  even  to  the  ex- 
tent of  giving  the  master  an  action  for  damages. 
The  only  statute  on  the  subject  is  in  California, 
which  limits  contracts  of  personal  service  to  two 
years  (see  §  6,  note  1). 

Contracts  of  employment  or  service  may, 
however,  provide  that  until  or  unless  the  whole 
period  of  service  is  performed  the  servant  or 
employee  can  demand  no  part  of  his  wages. 
The  legality  of  such  a  contract  rests  on  the  prin- 
ciple that  the  performance  of  the  whole  work,  or 
of  a  prescribed  term  of  the  work,  is  a  condition 
precedent  to  the  recovery  by  the  employee  of 
his  wages  for  the  whole  time  or  for  any  special 
period,  as  the  case  may  be.  Such  contracts  are 
perfectly  legal,  but  they  must  be  clear.  If  it  is 
not  clear  that  the  contract  means  to  forfeit  all 
claim  for  damages  in  case  the  employee  leave 
the  employment  before  the  prescribed  time,  such 
leaving  employment  will  only  give  the  master  a 
right  to  have  the  wages  to  be  paid  abated  by  a 
proportionate  amount.^ 

Some  states  have,  however,  passed  express 
statutes  providing  against  the  workman's  leaving 
without  giving  a  certain  notice  (see  hereafter 
in  §  62)  in  special  occupations. 

''Stark  V.  Parker,  2  Pick.,  267;  Olmstead  v.  Beal,  19 
Pick.,  528;  Hunt  v.  The  Otis  Co.,  4  Met.,  464;  Fuller  v. 
Brown,  11  Met.,  440. 


40  HANDBOOK    TO   THE   LABOR   LAW 


CHAPTEE  II 

STATUTES  REGULATING  THE  EMPLOYMENT 
CONTRACTS 

§  10.  Wages No  one  of  the  United  States 

has  attempted  to  legishite  concerning  the  rate  of 
private  wages ;  the  constitution  of  Louisiana 
specially  forbids  it  (see  §  3,  note),  and  such  a 
law  would  be  unconstitutional  in  all  the  states. 
As  to  public  work  (see  §  12),  it  is  possible 
that  a  statute  requiring  municipal  corporations 
to  -psij  not  more,  nor  less,  than  a  certain  sum, 
or  to  pay  a  ceiiain  sum,  would  also  be  held 
unconstitutional  in  favor  of  any  city  or  town  re- 
sisting it ;  but  no  case  of  this  sort  has  yet  arisen. 
A  municipal  corporation  may,  however  (in  the 
absence  of  any  prohibition  in  its  charter  or  the 
general  law  governing  it,  such  as  "  that  all  pub- 
lic contracts  shall  be  let  to  the  lowest  bidder  "), 
fix  the  payment  for  wages  by  resolution  or  vote 
at  what  price  it  choose  ;  and  towns  and  cities  in 
the  New  England  states  often  do  fix  the  price 
they  shall  pay  unskilled  labor  in  that  way,  usu- 
ally at  $2  a  day.  Such  resolutions  have  not  com- 
monly been  questioned,  though  it  may  be  doubted 
whether  town  ofiicers  are  bound  by  them.     But 


OF   THE    UNITED    STATES  41 

municipal  ordinances  or  by-laws  must  generally 
be  reasonable  and  subject  to  review  by  the 
courts ;  and  it  is  probable  they  would  set  aside 
an  ordinance  prescribing  a  grossly  unreasonable 
rate.  And  Cooley  '  says  :  "  The  power  of  mu- 
nicipal corporations  to  make  by-laws  is  limited 
in  various  ways. 

"It  is  controlled  by  the  constitution  of  the 
United  States  and  of  the  state.  The  restric- 
tions imposed  by  those  instruments,  and  which 
directly  limit  the  legislative  power  of  the  state, 
rest  equally  upon  all  the  instruments  of  govern- 
ment created  by  the  state.  If  a  state  cannot 
pass  an  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  neither  can  any  agency 
do  so  which  acts  under  the  state  with  delegated 
authority.  By-laws,  therefore,  which  in  their 
operation  would  be  ex  post  facto,  or  violate  con- 
tracts, are  not  within  the  power  of  municipal 
corporations ;  and  whatever  the  people,  by  the 
state  constitution,  have  prohibited  the  state 
government  from  doing,  it  cannot  do  indirectly 
through  the  local  governments. 

"  Municipal  by-laws  must  also  be  in  harmony 
with  the  general  laws  of  the  state,  and  with  the 
provisions  of  the  municipal  charter.  Whenever 
they  come  in  conflict  with  either,  the  by-law 
must  give  way." 

'  Cooley  :  Const.  Lira  .,  *  p.  108. 


42  HANDBOOK    TO   THE    LABOll    LAW 

It  is  possible,  however,  that  even  an  ordinance 
fixing  the  rate  of  wages  to  be  paid  by  the  town, 
for  a  brief  period,  or  from  year  to  year,  might  be 
regarded  rather  as  a  contract,  or  as  a  vote  in- 
structing the  town  officers  as  to  the  terms  of  a 
contract  which  they  had  the  legal  power  to 
make,  than  as  a  by-law  ;  and  hence  would  not 
be  subject  to  any  constitutional  objections.  The 
question  whether  any  town  had  power  so  to 
limit  and  control  its  officers,  would  turn  upon  the 
statutes  of  the  state  and  its  general  system  of 
municipal  government.  Where,  as  in  most  west- 
tern  states,  the  powers  of  city  or  town  govern- 
ments are  expressly  delimitated,  it  would  seem 
that  they  have  no  power  to  fix  wages  by  order 
or  by-law,  but  the  rate  must  be  left  in  each  case 
to  the  parties  or  officers  to  whom  the  law  has 
delegated  authority  to  make  the  contract  for  the 
labor  in  question.  In  California  there  is  a  stat- 
ute requiring  all  municipalities  to  hire  labor  by 
the  day  only  (see  §  12). 

There  is  one  constitutional  provision  ^  seeking 
to  provide  reasonable  pay  for  labor  in  general 
cases.  From  the  nature  of  the  thing  such  pro- 
visions can  hardly  be  more  than  glittering  gen- 
eralities. And  there  is  a  new  law  in  Michigan 
requiring  all  highway  labor  and  taxes  to  be  ex- 
pended  "  within  the  limits    of  the  township ; " 

'  Wyoming.     See  §  3,  note. 


OF   THE   UNITED   STATES  43 

which  may  mean  that  laborers  without  the  town 
cannot  be  employed,  and  hence  might  have  some 
effect  in  locally  advancing  the  rate  of  wages.^  In 
Kansas,  municipal  corporations,  the  state,  or 
contractors  for  public  work  shall  pay  "  not  less 
than  the  current  rate  of  per  diem  wages  in  the 
locality  where  the  work  is  performed."  ^ 

§  11.  Hours  of  Labor,  Generally. — No  states 
have  passed  laws  limiting,  in  all  occupations, 
the  hours  of  daily  labor  of  adult  men,  or  forbid- 
ding contracts  to  labor  for  any  length  of  time 
the  parties  may  voluntarily  agree  ujjon.  (See, 
however,  §§  13,  14,  Georgia  and  South  Carolina 
laws.)  Such  a  law  would  probably  be  held  un- 
constitutional in  every  state  (see  §§  1-3).  The 
nearest  attempt  to  pass  such  a  law  was  the  Ne- 
braska statute  of  1891,  ch.  54 ;  this  provided 
that  eight  hours  should  "  constitute  a  legal  day's 
work  for  all  classes  of  mechanics,  servants,  and 
laborers  throughout  the  state  of  Nebraska,  ex- 
cepting, those  engaged  in  farm  and  domestic 
labor.  .  .  .  Any  employer  or  corporation 
working  their  employees  over  the  time  specified 
in  this  act  shall  pay  as  extra  compensation 
double  the  amount  per  hour  as  paid  for  previous 
hour."  The  statute  also  imposed  a  fine  as  for 
misdemeanor  upon  any  corporation  or  private 

3  Miqh.,  1895,  231.  *  Kan..  180L  114. 


44     HANDBOOK  TO  THE  LABOR  LAW 

employer  who  should  fail  to  comply  with,  or 
evade,  these  provisions. 

It  will  be  noted  that  this  statute  did  not  in 
terms  forbid  contracts  for  a  longer  day  than 
eight  hours,  but  only  required  double  compen- 
sation for  the  overtime.  Nevertheless,  the  stat- 
ute was  declared  unconstitutional  and  annulled 
by  the  Supreme  Court  of  NebrasTva  in  1894,'  both 
on  the  ground  that  it  denied  freedom  of  con- 
tract, and  that  it  made  a  class  distinction  against 
farm  and  domestic  labor.  The  case  will  be 
more  fully  discussed  hereafter  in  §  13. 

So,  in  Colorado,  in  1895,  the  opinion  of  the 
Supreme  Court  was  asked  by  the  legislature  on 
a  bill,  §  1  of  which  read  "  eight  hours  shall  con- 
stitute a  legal  day's  work  for  all  classes  of  me- 
chanics, workingmen,  and  laborers  employed  in 
any  occupation  in  the  State  of  Colorado."  It 
does  not  appear  whether  extra  work  for  extra 
pay  was  to  be  allowed,  but  inferentially  not.  It 
appeared  that  an  amendment  was  proposed  limit- 
ing the  act  to  laborers  employed  in  mines,  fac- 
tories, and  smelters ;  and  the  court  expressly 
decided  both  questions  in  the  following  words : 

"  It  is  not  competent  for  the  legislature  to 
single  out  the  mining,  manufacturing,  and  smelt- 
ing industries  of  the  state,  and  impose  upon  them 
restrictions,  with  reference  to  the  hours  of  their 

•  Low  V.  Rees  Printing  Co  ,  59  N.  W.,  762;  41  Neb.,  127. 


OF   THE    UxXITED    STATES  45 

employees,  from  which  other  employers  of  labor 
are  exempt.  An  act  such  as  proposed  Avould  be 
manifestly  in  violation  of  the  constitutional  in- 
hibition against  class  legislation.  The  bill  sub- 
mitted also  violates  the  right  of  parties  to  make 
their  OAvn  contracts — a  right  guaranteed  by  our 
bill  of  rights,  and  protected  by  the  fourteenth 
amendment  to  the  constitution  of  the  United 
States."  ^ 

Several  states,  however,  have  provided  what 
shall  be  regarded  as  a  legal  day's  labor  in  the 
absence  of  any  express  agreement  (or  to  be  im- 
plied from  well-known  conditions  of  the  trade  ^) 
to  the  contrary.  This  is  eight  hours  in  six 
states,^  and  ten  hours  in  five  states  ;  ^  while  in 
Floiida  the  agreemeut  for  more  or  less  than  ten 
hours  must  be  in  writing.  In  New  Hampshire, 
Connecticut,  Pennsylvania,  California,  and  Flor- 
ida this  law  applies  to  all  classes  of  labor ;  ^  in 


«  Re  Eight-hour  Law,  39  Pac,  328. 

'  See  below  in  this  section. 

«Ct.  G.  S.,  1746;  Pa.  Dig.,  p.  1158;  Ind.,  1889,  p.  143; 
R.  S.,  7052;  Mo.  R.  S.,  6353;  Cal.  Pol.  C,  3244;  1887,  85; 
111.,  1867,  p.  101,  1. 

'  N.  H.,  180,  20;  Me.,  82,  43;  Mich.,  1885,  137,  §  2;  Fla., 
2117;  Neb.,  5329. 

*  The  phrase  is  "  All  classes  of  mechanics,  workingmen,  and 
laborers,"  Ind.  "All  mechanical  trades  and  employments, 
and  other  cases  of  labor  and  service  by  the  day  except  farm 
employment,"  111.  "  All  cases  of  labor  and  service  by  the 
day     •     .     .     between  the   rising    and  setting  of  the  sun," 


40  HANDBOOK    TO    TlIK    LABOR    LAW 

Maine,  Pennsylvania,  Missouri,  Indiana,  Illi- 
nois, to  all  except  those  engaged  in  farm  or 
agricultural  or  domestic  service  ; ''  and  in  Maine, 
Pennsylvania,  Missouri,  and  in  general  cases  in 
Illinois,  it  only  applies  to  persons  engaged  by 
the  da}',  not  by  the  week  or  month,  and  so  by 
court  decision  in  Indiana.**  (For  still  narrower 
statutes  applying  only  to  special  occupations,  see 

§14)    ^ 

Evasion  of  the  law  (by  exacting  overtime 
without  compensation,  etc.)  is  made  a  misde- 
meanor in  Indiana.  ^ 

Such  laws  provide  expressly  '*'  or  impliedly 
that  voluntary  contracts  for  a  longer  time  may 
be  made  ;  hence  they  are  probably  constitutional 
as  not  interfering  with  the  right  to  labor  a 
longer  day  if  a  person  will.  Nevertheless  the 
Supreme  Court  of  Nebraska  has  lately  held, " 

Pa.,  111.  In  Michigan  (see  §  13  also),  "  In  any  meciianical, 
manufacturing  or  other  labor  calling."  In  Missouri  an  ex- 
ception is  made  of  labor  "  employed  by  the  month,"  and  ag- 
ricultural labor. 

'  The  specification  of  domestic  labor  is  omitted  from  the 
exception  in  Maine,  Illinois,  and  Missouri,  but  comes  in  in- 
ferentialiy  under  the  exception  of  "  monthly  labor." 

=*  Helphenstine  v.  Hartig,  5  Ind.  App.,  172. 

9R.  S.,  7055. 

'"  The  law  so  expressly  provides  in  all  these  states  except 
Nebraska;  and  in  that  state  the  case  of  Low  v.  Rees  Print- 
ing Co.,  while  not  declaring  this  statute  unconstitutional, 
clearly  renders  such  an  interpretation  necessary.     See  below. 

"  Low  V.  Rees  Printing  Co.,  59  N.  W.,  at  p.  366. 


OF   THE   UNITED   STATES  47 

not  only  that  an  eight-hour  law  was  unconstitu- 
tional which  required  double  rates  for  overtime, 
on  the  ground  that  this  was  an  interference  with 
freedom  of  contract,  but  also  unconstitutional 
as  class  legislation,  in  that  the  statute  specially 
excepted  farm  and  domestic  labor  from  its  oper- 
ation ;  and  the  Illinois  and  Ohio  laws  (though 
the  Illinois  statute  applied  only  to  women  and 
minors)  rested  partly  on  the  same  ground  ;  the 
one  covering  the  case  of  factory  labor,  the  other 
that  of  railway  employees.''^ 

Now  this  principle  forbidding  class  legislation 
rests  on  two  express  constitutional  provisions  : 
that  the  legislature  may  not  make  any  grant  of 
special  privileges  or  imui unities  to  any  citizen 
or  class  of  citizens,'^  or  that  no  man  or  set  of 
men  is  entitled  to  exclusive  public  emoluments 
or  privileges  from  the  community  except  in  con- 
sideration of  public  services  ;  "  and  upon  the 
other  frequent  provision,  that  there  shall  be  no 
special  local  or  private  law  in  any  case  where 
provision  may  be  made  by  general  law. 

It   has,  however,  been   declared   by   the  Su- 


'2  Ritchie  V.  Illinois,  155  111.,  98.  See  §  13.  Wheeling 
Bridge  Co.  v.  Gillmore,  8  O.  C.  C,  G64.     See  §  14. 

'3  Mass.  C,  1,  6;  Ind.  C,  1,  23;  lo.  C,  1,  6;  Ky.  C,  3; 
Tenn.  C,  11,  8;  Ark.  C,  2,  18;  Cal.  C,  1,  21;  Ore.  C,  1, 
20;  Wash.  C,  1,  12;  N.  D.  C,  1,  20;  S.  D.  C,  6,  18. 

"  Vt.  C,  1,  7;  Ct.  C,  1,  1;  Va.  C,  1,  6;  N.  C.  C,  1,  7; 
Tex.  C,  1,  3;  N.  M.,  1851,  July  12,  §  2. 


48  HANDBOOK    TO   THE   LABOR   LAW 

preme  Court  of  Ohio  that  "  the  equal  protection 
of  the  law,"  the  principle  forbidding  class  legis- 
lation, does  not  require  any  express  constitu- 
tional prohibition  to  render  such  laws  invalid. 
And  this  is  doubtless  true  of  all  states,  and 
would  be  so  held  even  in  the  other  states  than 
those  mentioned  in  notes  13,  14,  below,  states 
which  have  not  the  constitutional  provision,  cer- 
tainly where  the  reason  and  policy  of  the  dis- 
tinction do  not  appear  upon  the  face  of  the  law 
creating  it.'* 

Local  or  special  laws  are  expressly  forbidden 
by  the  constitutions  of  many  states.  Thus,  in 
several  states,  "  there  shall  be  no  special,  local, 
or  private  law  in  any  case  for  which  provision 
has  been  or  (except  in  Georgia  and  Pennsylva- 
nia) can  be  made  by  general  law."  '°  And  whether 
a  general  law  can  be  made  applicable  or  not  is 
declared  by  the  Missoim  constitution  to  be  a 
judicial  question  despite  any  legislative  asser- 
tion to  the  contrary. 

The  usual  view  is  that  such  prohibitions  as  the 
above,  of  local  or  special  law,  do  not  apply  to  in- 


'*  Hocking  Valley  Coal  Co.  «.  Rosser,  41  N.  E.,  263,  at  pp. 
2G5,  266. 

''  Pa.  C,  3,  7;  Ind.  C,  4,  23;  HI.  C,  4,  22;  Kan.  C,  2, 
17;  Neb.  C,  3,  15;  Md.  C,  3,  33;  W.  Va.  C,  6,  39;  Ky. 
C,  59;  Mo.  C,  4,  53;  Ark.  C,  5,  25;  Tex.  C,  3,  56;  Cal. 
C,  4,  25;  Nev.  C,  4,  21;  Col.  C,  5,  25;  Ga.  C,  1,  4,  1 ; 
Ala.  C,  4,  23. 


OF   THE    UNITED    STATES  49 

validate  laws  affecting  all  the  members  of  any 
class  alike,  but  only  to  laws  affecting  particular 
persons,  or  all  persons  in  a  particular  locality. 
They  have  consequently  only  an  indirect  bearing 
upon  general  class  legislation.  But  the  consti- 
tutions of  several  states  have  the  provision  more 
precise,  specially  affecting  labor  ;  as  that  "  the 
legislature  shall  pass  no  local  or  f^ijecial  law  reg- 
ulating labor,  trade,  manufacturing,  mining,  or 
agriculture."  "  Possibly  this  word  "  special "  may 
extend  the  prohibition  to  legislation  for  special 
classes  of  laborers,  as  well  as  special  localities. 

Such  is  the  wording  of  the  constitutional  pro- 
visions ;  and  with  all  deference  to  the  opinions  of 
these  high  courts,  the  writer  would  submit  the 
view  that  these  four  cases,  while  undoubtedly  well 
decided  upon  the  freedom  of  contract  point, 
should  stand  upon  that  point  alone.  No  one  of 
the  laws  (except  in  so  far  as  the  Ohio  law  was  re- 
stricted to  railroads  more  than  thirty  miles  long) 
fairly  presents  a  case  of  class  legislation.  They 
all  applied  to  all  members  of  the  general  class  of 
industrial  laborers  alike  throughout  the  state ; 
and  the  discrimination  between  such  labor  and 
farm  or  domestic  labor  carried  its  reason  on  its 
face ;  it  was  surely  not  an  arbitrary  distinction 
within   the    meaning    of    Cooley's    well-known 


"  Pa.  C,  3,  7;  Ky.  C,  59;  Mo.  C,  4,  53;  Tex.  C,  3,  56; 
La.  C,  46. 

4 


/iO  HANDBOOK    TO   TIIK    LABOR    LAW 

defiuition.'^  Otherwise  the  statutes  above  cited 
of  Maine,  Pennsylvania,  AVisconsin,  Indiana, 
aud  Illinois,  wliicli  all  except  farm  or  domestic 
labor,  and  many  similar  laws,  quoted  below  in 
§§  13,  14,  must  be  held  uuconstitutional  also. 
The  true  doctrine  would  seem  to  be  that  a  law 
is  not  class  legislation  which  applies  to  all  the 
members  of  the  class  alike,  aud  where  it  rests  on 
no  arbitrary  ground,  but  carries  upon  its  face 
some  reason  of  public  health,  safety,  or  moral- 
ity, upon  which  it  may  be  defended ;  '^  and  the 
distinction  between  indefinite  employment,  like 
that  of  a  domestic  servant,  and  the  definite  hours 
of  a  factory  or  workshop,  or  even  general  me- 
chanical labor,  is  surely  such  a  reason.     But  the 


'8  Cooley,  Const.  Lira.,  *393. 

Thus,  a  statute  allowing  pedlars'  licenses  to  be  issued  only 
to  lame  persons,  was  held  to  involve  an  arbitrary  distinction, 
and  declared  unconstitutional  in  Pennsylvania.  Britain's 
Case,  3G  P.  L.  J.,  17. 

And  in  Michigan  a  libel  law  applying  only  to  newspapers, 
and  exempting  them  from  liabilities  for  libels  to  which  ordi- 
nary persons  were  still  subject,  was  declared  unconstitutional 
for  the  same  reason.    Park  r.  Free  Press  Co.,  72  Mich.,  5G0. 

And  finally,  the  case  of  State  i\  Julow,  31  S.  W.,  781  (see 
§  53),  held  clearly  that  any  discrimination  in  a  statute  between 
union  and  non-union  men  made  it  uuconstitutional  as  class 
legislation. 

See  also  §§  3,  4,  15,  20,  21,  23,  25,  32,  39,  52,  57,  61,  62. 

"See,  however.  Wheeling  Bridge  Co.  v.  Gillmore,  8  0.  C. 
C,  164,  in  §  14,  below;  also  Wally's  Heirs  v.  Kennedy,  2 
Yerger,  554. 


OF  thp:  uxited  states  51 

liberty  of  contract,  the  right  to  labor,  whether  of 
a  class  or  of  all  citizens,  may  not  be  taken  away 
by  any  legislature ;  and  for  this  reason  the 
Colorado,  Nebraska,  Illinois,  and  Ohio  cases 
were  rightfully  decided.  The  statutes  above 
cited  of  other  states  should,  however,  be  held 
valid,  and  it  does  not  appear  that  they  have  yet 
been  questioned  in  a  court  of  last  resort,  as  they 
do  not  forbid  or  penalize  a  contract  for  a  longer 
day ;  indeed,  they  all,  except  the  Nebraska  stat- 
ute, expressly  recognize  contracts  for  a  longer  day. 
Pay  for  Overtime. — And  it  follows  that  pay 
for  overtime  may  be  demanded,  unless  the  em- 
ployee has  expressly  or  impliedly  contracted  for 
a  longer  day  ;  and  this,  in  Maine,  although  the 
laborer  has  been  paid,  by  the  day,  in  full  and 
given  receipts.-^  He  will  be  deemed  to  have  so 
contracted  when  he  had  actual  knowledge  that 
such  longer  time  was  required  by  the  employer, 
either  by  actual  notice  or  by  the  general  usage 
of  the  trade.  Thus  it  was  held  that  a  night- 
watchman  at  car  stables,  or  the  engineer  of  a 
flouring  mill  could  not  recover  extra  pay  for  ser- 
vice for  more  than  ten  hours  ;  ^'  nor  a  photogra- 

•^0  Bachelder  v.  Bickford,  62  Me.,  526.  In  Florida  there 
18  an  express  statute,  that  in  the  absence  of  a  written  contract 
for  overtime  the  employee  is  entitled  to  extra  pay :  R.  S., 
2118. 

-•  Bartlett  v.  Street  Ry.  Co.,  82  Mich.,  058.  Helphenstine 
V,  Hartig,  5  Ind.  App.,  172. 


^2  IFANDBOOK    TO   THE   LABOR   LAW 

pher's  assistant  paid  by  the  week  for  "  finishing  " 
photographs  ; '"  nor  a  manager  of  gas-works  paid 
by  the  week,  though  he  Avorked  sixteen  hours  a 
day,  the  nature  of  the  business  requiring  it.^ 

And  in  other  states  the  statute  lias  been  con- 
strued still  more  strictly,  and  pay  for  overtime 
cannot  be  demanded  unless  contracted  for,  or 
clearly  implied  from  the  circumstances  ;^^  that  is, 
neither  extra  labor  nor  extra  pay  can  be  demanded 
without  a  special  contract.  The  workman  may 
stop  work  at  the  end  of  the  legal  day,  but  if  he 
choose  to  go  on  he  cannot,  in  the  absence  of 
agreement,  charge  for  overtime.  So,  on  the 
other  hand,  if  he  work  by  the  day,  but  less  in 
all  on  the  average  than  the  legal  day,  if  each 
day's  work  was  accepted  as  such,  the  employee 
may  sue  for  the  full  per  diem  amount. '^^ 

§  12.  Public  Labor  Hours. — But  many  states 
have  passed  laws  prescribing  the  hours  of  labor 
as  to  skilled  or  unskilled  labor  employed  directly 
by  the  state,  or  any  county,  city,  town,  or  mu- 
nicipal corporation,  or  even  by  private  contract- 
ors upon  public  work,  or  for  such  municipal 
corporations.     Such  laws  are  generally  consti- 

'■■^  Schnurr  v.  Savigny,  85  Mich.,  144. 
"Luske  V.  Hotchkiss,  37  Ct.,  219. 

2'  xMoCarthy  v.  Mayor  of  N.  Y.,  96  N.  Y.,   1 ;  Luske  v. 
Hotchkiss,  37  Ct.,  219 ;  Ind.  Stats.,  1889,  p.  143. 
"Brooks  V.  Cotton,  48  N.  H.,  50. 


OF   THE   UNITED    STATES  53 

tutional,  as  they  merely  prescribe  tlie  kind  of 
contract  the  state,  or  its  municipal  corporations, 
shall  make,  and  so  the  federal  law  was  inter- 
preted by  the  United  States  Supreme  Court ;  * 
but  when  they  go  further,  and  impose  a  penalty 
upon  a  private  person,  whether  laborer  or  em- 
ployer, or  make  it  a  misdemeanor  or  criminal 
offence  for  such  employer  to  make  contracts, 
voluntary  on  both  sides,  Avith  his  own  workmen 
for  a  longer  time,  their  constitutionality  seems 
more  open  to  doubt ;  it  has  been  indignantly 
denied  by  the  Supreme  Court  of  California,^  and 
affirmed  by  that  of  New  York  ^  and  (of  a  federal 
law)  in  the  federal  courts.'* 


'  U.  S.  V.  Martin,  94  U.  S.,  400. 

'  Kuback's  Case,  85  Cal.,  274.  And  this  case  was  so  de- 
cided in  spite  of  the  statute  and  constitutional  provision  mak- 
ing eight  hours  a  legal  day  in  all  public  work,  and  requiring 
city  contracts  to  be  so  made.  The  law  creating  the  misde- 
meanor for  which  Kuback  was  indicted  was  a  city  ordinance. 

3N.  Y.  Laws,  1891,  105,  504;  People  v.  Warren,  28  N.  Y. 
Sup.,  303.  The  case  is  ill  considered,  however,  and  is  in  ef- 
fect destroyed  by  the  decision  of  the  Court  of  Appeals  upon 
a  habeas  corpus  brought  by  Warren,  that  the  statute  was  not 
penal,  but  directory  merely ;  and  "  could  not  be  the  basis  of 
a  criminal  indictment  for  misdemeanor,"  whereby  defendant 
was  released,  and  it  became  unnecessary  to  consider  its  con- 
stitutionality. People  ex  rel.  Warren  v.  Beck,  144  N.  Y., 
225. 

*  The  validity  of  the  statute  was  not  really  passed  upon, 
however,  the  court  holding  that  the  defendant  did  not  come 
within  2t8  terms.     U.  S.  v.  Ollinger,  55  F.  R.,  959.    And  in 


54     HANDBOOK  TO  THE  LABOR  LAW 

Thus,  in  some  states  eight  hours  is  made  the 
prescribed  legal  day  in  all  labor  employed  by 
the  state  or  any  municipal  corporation ;  ^  in 
others  nine  liours.^  In  California,  Idaho,  and 
Wyoming  the  former  time  is  prescribed  in  the 
constitution.  And  in  all  these  states  but  Texas 
the  prescription  applies  to  all  work  done  by 
contractors,  etc.,  for  the  state  or  on  public 
works.  And  in  New  York,  California,  Indiana, 
Kansas,  and  Colorado,  to  exact  or  require  em- 
ployment for  a  longer  time  subjects  the  employer 
to  a  fine,  or  even  renders  him  guilty  of  a  misde- 
meanor or  criminal  offence,  and,  at  the  option 
of  the  state,  forfeits  his  contract.' 

Wages. — In  Massachusetts  a  law  provides  that 
cities  shall  pay  laborers  weekly  (compare  §§  10, 
21)  at  a  rate  not  exceeding  $2  per  day.^ 

Contract. — And  the  California  code  provides 
that  all  labor  on  public  buildings  of  the  state. 


another  case  in  the  Supreme  Court  the  statute  was  held  di- 
rectory merely.     U.  S.  v.  Martin,  94  U.  S.,  400. 

'-N.  Y.,  1870,  385;  Ind.,  1889,  p.  143,  §  2;  R.  S.,  7053; 
Kan.,  1891,  114;  Cal.,  1893,  113;  Cal.  Const.,  20,  17;  Pol. 
C,  3245 ;  Ida.  Const.,  13,  2 ;  Wy.  Const.,  19,  1 ;  Utah,  1894, 
11;  U.  S.  R.  S.,  3738. 

"Mass.,  1890,  375;   1894,  508,  8;  Tex.,  1879,  137. 

'N.  Y.,  1870,  385,  4;  Kan.,  1891,  114,  3;  Col.,  1893,  113, 
3;  Ind.  R.  S.,  7054. 

^Mass.,  28,  12.  For  a  discussion  of  the  validity  of  such 
laws,  if  actually  fixing  the  rate,  see  §  10.  The  weekly  pay- 
ment part  of  the  law  is  unquestionably  valid. 


OF   THE   UNITED   STATES  65 

skilled  or  unskilled,  must  be  employed  by  the 
day,  and  no  such  work  done  by  contract.^  And 
"  every  person  who  employs  laborers  upon  the 
public  works,  and  who  takes,  keeps,  or  receives 
any  part  or  portion  of  the  wages  due  to  such 
laborers  from  the  state  or  municipal  corpora- 
tion for  which  such  work  is  done,  is  guilty  of  a 
felony."  *« 

§  13.  Hours  of  Labor,  Women  and  Minors — 
But  in  the  case  of  women  and  children,  nearly 
all  the  states  regulate  the  hours  of  labor,  at  least 
in  factories  and  Avorkshops,  mechanical,  manu- 
facturing, or  industrial  occupations  ;  ^  usually  to 
ten  hours  (in  Pennsjdvania,  twelve  hours)  a  day, 
or  sixty  hours  a  week,^  but  in  Massachusetts,  to 


*Cal.  Pol.  C,  §  3233.  The  provision  is  ridiculous,  but  not 
unconstitutional. 

'«Cal.  P.  C,  1872,  April  1,  §  1.  This  provision  is  possibly 
unconstitutional.     Ex  parte  Kuback,  85  Cal.,  274. 

'  The  phrase  covers  "  any  factory  or  workshop,"  O., 
Wis.,  Minn.,  Dak.,  Okla.,  or  warehouse,  etc.;  La.,  "Any 
manufacturing  or  mechanical  establishment  ;  "  Mass.,  Me., 
N.  H.,  Wis.,  Minn.,  Dak.,  Ga.,  Okla.,  "  Any  manufactur- 
ing establishment;"  R.  I.,  N.  Y.,  Pa.,  Va.,  Md.,  "Any 
manufacturing,  mechanical,  or  mercantile  establishment  ; " 
Ct.,  Cal.,  Mich.,  "  Cotton  or  woollen  factories  ;  "  Ind.,  S.  C, 
Ga.,  "  Any  manufacturing  or  renovating  establishment  or 
mercantile  industry  ;  Pa.,  "  Any  factory  ;  "  N.  J.,  Va., 
"  Manufacturing  establishments  and  machine  shops;  "  Ga. 

'Mass.,  1894,  508,  10  ;  Me..  1887,  139,  1  ;  N.  H.  P.  S., 
180,  14  ;   K.  I.,  1885,  519.  1  ;   Ct.  G.  S..  1745  ;  N.  Y.,  1886, 


56  HANDBOOK    TO   THE    LABOR    LAW 

fifty-eiglit  hours  a  -week ;  in  South  Carolina  and 
Georgia,  to  eleven  hours,  or  sixty-six  a  week  in 
cotton  and  woollen  factories  ;  and  in  Wisconsin 
(in  Alabama,  this  law  was  repealed  in  1895)  to 
eight  hours  a  day ;  '^  and  in  such  cases  no  volun- 
tary contract  for  overtime  is  permitted  by  the 
law,^  and  the  employer  permitting,  or  compelling 
overtime,  or  the  employment  of  women  or  mi- 
nors, contrary  to  the  statute,  is  commonly  subject 
to  a  fine,  or  guilty  of  a  misdemeanor.^  In  Geor- 
gia the  hours  in  all  other  employments  are  from 
sunrise  to  sunset,  usual  meal  times  allowed.  ® 

This  statute  applies  to  all  women  and  to  all 
minors   under    eighteen   (Mass.,    N.  H.,    Wis., 


409  ;  1892,  673,  1  ;  N.  J.  Rev.,  p;  485,  §  18  ;  Pa.,  1893,  244, 
1  ;  Dig.,  p.  865  ;  O.  R.  S.,  6986  aa  ;  Ind.  R.  S.,  2336  ; 
Mich.,  1997,  a  5  ;  1895,  184,  1  ;  Minn.  G.  S.,  24,  1  ;  Cal., 
1889,  7,  1  ;  Va.,  1890,  193,  1  ;  La.,  1886,  43,  4  ;  Md.,  27. 
139  ;  Dak.  P.  C,  739  ;  Okla.,  1893,  2550  ;  S.  C,  1882,  39; 
Ga.,  1889,  599. 

3  Wis.,  1883,  135.  The  Illinois  Statute  (111.,  1893,  p.  99) 
to  the  same  effect  has  been  declared  unconstitutional  :  Ritchie 
V.  Illinois,  155  111.,  98. 

*  But  in  some  states  the  statute  expressly  allows  voluntary 
contract  for  overtime  by  persons  over  eighteen.  Me.,  Wis., 
Okla. ;  by  persons  over  fourteen,  Minn.,  Dak. ;  by  males 
over  eighteen,  and  females  over  twenty-one,  Mich. 

"  Mass.,  ib.,  §  60  ;  N.  H.,  ib.,  §  16  ;  N.  Y.,  ib.,  §  21  ;  Ct.  ; 
Me.,  ib.,  3  ;  R.  I.  ;  N.  J.  ;  Pa.  ;  111.,  1893,  p.  101,  8  ; 
Mich.  ;  Minn. ;  Va.,  ib.,  2  ;  Md.,  27,  140  ;  Wis.  ;  Ind.  ; 
Cal.  ;  Dak.  :  Okla.  ;  La.     But  see  note  4. 

« Ga.  Code,  1885. 


OF   THE    UNITED    STATES  57 

Minn.,  La.,  Dak.,  Okla.) ;  to  all  women  and  all 
minors  under  sixteen  (R.  I.,  Ct.,  Me.)  ;  to  all 
women  under  twenty-one,  and  minors  under 
twenty-one  (N.  J.,  Pa.,  Ga.) ;  to  all  women  under 
twenty-one,  and  minors  under  eighteen  (N.  Y., 
Mich.) ;  to  all  women  under  eighteen,  and  minors 
under  eighteen  (O.,  Cal.,  Ind.)  ;  to  both  sexes 
under  sixteen  (Md.)  ;  to  all  women  and  to  chil- 
dren under  fourteen  (Va.)  ;  to  all  persons  in 
cotton  and  woollen  factories  (S.  C,  Ga.). 

And  out  of  this  labor  period,  one  hour  each  day 
must  be  taken  for  dinner, '  or  in  other  states  forty- 
five  minutes.^  No  women  and  no  minors  under 
eighteen  (N.  Y.),  or  twenty-one  (Mass.),  shall  be 
employed  in  factories  between  10  p.m.  and  6 
A.M.,  in  Massachusetts,  or  9  p.m.  and  6  a.m.,  in 
New  York.^  So  half  an  hour  for  a  meal  must  be 
given,  after  any  six  hours'  time,  in  Massachusetts ; 
and  all  children  and  women,  five  in  number,  em- 
ploj'ed  in  the  same  factory,  must  be  allowed  their 
meal  time  at  the  same  hour.^°  Employees  work- 
ing overtime  after  6  p.m.  must  be  given  twenty 
minutes  for  lunch. ^^ 

■"N.  Y.,  1893,  173,  1;  La.  But  the  factory  inspector  may 
give  a  written  permit  for  a  shorter  meal  time :  N.  Y.,  Pa., 
Mich. 

«Pa.,  ib.,  11  ;  Mich.,  189a,  184,  11. 

•Mass.,  ib.,  12  ;  N.  Y.,  1890,  398,  1. 

'"  Mass.,  ib.,  26,  27,  28.  This  rule  may  be  suspended  in 
special  kinds  of  factories  by  the  chief  of  police,  with  the 
approval  of  the  governor.  "  N.  Y..  1893.  173,  1. 


68  HANDBOOK    TO    THK   LA  HO  II    LAW 

A  diflfereut  apportionment  of  hours  per  day 
is,  however,  allowed  in  some  states  for  the  sole 
purpose  of  making  a  shorter  day's  work  for  one 
day  in  the  week,'^  or  to  make  up  for  time  lost 
by  stopj)ing  of  machinery,'^  or  when  necessary 
to  make  repairs  to  prevent  interruption  of  its 
ordinary  running.'^  And  in  Maine,  "  nothing  in 
this  act  shall  apply  to  any  manufacturing  estab- 
lishment or  business  the  materials  or  products 
of  which  are  perishable,  and  require  immediate 
labor  thereon  to  prevent  decay  or  damage."  '^ 

For  laws  limiting  women's  labor  in  special 
occupations,  see  §  15. 

Children.  (See  also  §  16.) — The  hours  of  labor 
of  younger  children  are  usually  further  regulated 
by  stricter  laws,  and  in  some  states  an  age  is 
prescribed  within  which  they  may  not,  under 
penalty  to  the  employer,  or  guardian,  be  em- 
ployed at  all  in  workshops  and  factories,  or 
mechanical  and  manufacturing  occupations.'^ 
This  age  is  fixed  at  ten  in  New  Hampshire,  Ver- 
mont, and  California;  ^''  at  twelve  in  Maine,  Ehode 


>*N.  H.,  Mass.,  Me.,  R.  I.,  Ct.,  N.  Y.,  Cal.,  Mich.,  ibid. 

»SN.  H.,  Mass.,  R.  I.,  Ct.,  Me.,  ib.,  §  2,  Ga. 

»N.  H.,  Me.,  R.  I.,  Ct.,  Cal.,  Pa.,  Mich. 

'5  Me.,  1887,  139,  10. 

'*  In  some  states  the  prohibition  is  extended  to  mercantile 
establishments  also :  Mass.,  Ct.,  R.  I.,  111.,  W.  Va.,  Tenn., 
Cal.     For  mines,  see  also  §  15. 

"N.  H.,  93,  10  ;  Vt.  Stats.,  5146  ;  Cal.,  1889,  7,  2. 


OF   THE    UNITED   STATES  59 

Island,  Ohio,  Wisconsin,  West  Virginia,  Tennes- 
see, and  by  the  constitution  of  North  Dakota,*^ 
at  twelve  for  boys  and  fourteen  for  girls  ;  in 
New  Jersey  and  Louisiana,'^  at  thirteen  for  both 
in  Massachusetts  and  Pennsylvania ;  '^  at  four- 
teen, in  Connecticut,  New  York,  Illinois,  Michi- 
gan, AVisconsin,^'  Colorado,^-  A  female  of  eigh- 
teen, or  male  of  sixteen,  may,  in  Maine,  contract 
for  overtime  on  extra  compensation  with  the 
parent's  or  guardian's  consent.'^^ 

Several  states  define  the  age  of  a  "  minor," 
"  child,"  or  "  young  person  "  for  purposes  of  this 
section.^^  (See  also  above.)  So  a  "  manufactur- 
ing establishment  "  sometimes  is  defined  to  mean 
a  place   where  five   persons   (in   Pennsylvania, 


'«Me,,  1887,  139,  5  ;  R.  I.,  1894,  1278  ;  W.  Va.,  1891, 
15  ;  Tenn.,  1893,  159  ;  N.  D.  Copst.,  209  ;  O.  R.  S.,  6986; 
Wis.  R.  S.,  1728  ;   1891,  109. 

'SLa.,  1886,  43  ;   N.  J.  Sup.,  p.  407,  §  9. 

""Mass.,  1894,  508,  13  ;    Pa.,  1893,  244,  2  ;    Dig.,  p.  865. 

■^'  Children  between  twelve  and  fourteen  may  be  employed 
upon  permit  of  the  county  judge  :  Wis.,  1891,  109,  and  so  in 
Ohio,  "  not  more  than  eight  hours  a  day,  during  vacations,  in 
such  employments  as  the  state  factory  inspector  may  find  not 
detrimental  to  the  health  of  the  child."     O.,  1891,  p.  396. 

«  Ct.,  1895,  118  ;  N.  Y.,  ib.,  2  ;  111.,  1893,  p.  100,  4 ;  Wis., 
1891,  109  ;   Mich.,  1895,  184,  2  ;    Col.,  1887,  p.  76. 

'•'3  Me.,  1887,  139,  1. 

s^Thus  a  "minor,"  in  Massachusetts  and  New  York,  for 
purposes  of  this  section,  is  a  person  under  eighteen  (N.  Y., 
1886,  409,  3  ;  Mass.,  ib.,  57),  and  in  Vermont,  Ohio,  Illinois, 
Iowa,    Minnesota,   Kansas,   Nebraska,   Maryland,  .Missouri, 


60  HANDBOOK   TO   THE   LABOR   LAW 

Michigan),  five  women  or  children  (in  Rhode 
Island),  or  three  persons  (Wisconsin),  or  one 
person  (New  York),  are  employed  ;  and  a  "  fac- 
tory "  to  mean  any  premises  where  steam,  water, 
or  mechanical  power  are  used  in  aid  of  manu- 
facturing (Massachusetts). 

A  "  manufacturing  establishment,"  any  place 
as  above  where  goods  or  products  are  manu- 
factured, repaired,  cleaned,  or  sorted,  in  whole 
or  in  part,^  or  "  any  factory,  workshop,  mine,  or 
establishment,  where  the  manufacture  of  any 
goods  whatever  is  carried  on."  ^ 

So  in  many  other  states  no  child  under  six- 
teen (or  a  similar  age)  can  be  permitted  ^  to 
labor  more  than  ten  hours  a  day  in  such  fac- 
tories or  mercantile  establishments,  and  such 
employment  is  a  misdemeanor.^   No  child  under 


Arkansas,  California,  Oregon,  Nevada,  Washington,  and 
Idaho  a  woman  ceases  to  be  a  minor  at  eighteen. 

A  "  child,"  in  Massachusetts,  is  a  person  under  fourteen. 

A  "  woman  "  is  a  woman  of  eighteen  and  upward. 

A  "young  person"  is  anyone  between  fourteen  and  eigh- 
teen. 

"N.  Y.,  1889,  560,  4;  Pa.,  ib.,  4;  111.,  1893,  p.  101,  §  7; 
R.  I.,  1894,  1278,  2  ;    Wis.,  1728  ;    Mich. 

56  N.  J.  Sup.,  p.  407,  §9. 

*'  In  some  states  the  word  is  "  compelled  "  :  Minn. 

°^  The  law  as  in  the  text  exists  in  the  following  states  •• 
Me.,  48,  15;  1887,  139,  1;  N.  J.  Sup.,  p.  772,  §  20;  Minn., 
1893,  96.  In  Indiana  the  age  and  time  limit,  respectively,  is 
fourteen  and  eight  hours.     In  Maine,  females  over  eighteen, 


OF  THE   UNITED   STATES  61 

thirteen  can,  in  Massachusetts,  be  employed  on 
any  indoor  work  for  wages,  or  in  any  manner 
during  public  school  hours,  unless  during  the 
year  previous  he  has  attended  school  for  at  least 
thirty  weeks  (see  §  16)  ;  and  no  child  under 
fourteen,  in  factories,  etc.,  except  during  vaca- 
tion, unless  he  have  procured  an  employment 
ticket,  etc.  (see  §  16),  showing  that  he  can  read 
and  write  and  has  attended  school  for  thirty 
weeks  during  the  year  preceding.^  In  Nebraska 
no  child  under  twelve  can  be  employed  in  shops, 
factories,  etc.,  more  than  four  months  in  a  year.^ 
And  in  Massachusetts  no  minor  under  eighteen 
shall  be  employed  in  laboring  in  any  mercantile 
estabhshment  more  than  sixty  hours  in  a  week."' 
*'  No  boss  or  other  superior  in  such  establishment 
shall  inflict  corporal  punishment  upon  such 
minor  laborers  ;  and  the  owners  of  such  factory 
or  machine-shop  shall  be  directly  liable  for  all 
such  conduct  on  the  part  of  their  employees ;  and 
such  minor  may  sue  in  his  own  name  for  dam- 


and  males  over  sixteen,  may  not  contract  for  excess  labor 
over  six  hours  a  week,  or  sixty  hours  in  a  year.  In  Vermont 
the  limits  are  fifteen  years  and  ten  hours ;  in  Wisconsin,  Da- 
kota, and  Oklahoma,  fourteen  and  ten  hours.  Ind.,  1893,  78  ; 
R.  S.,  2238;  Vt.,  5146;  Wis.,  1728;  Dak.  P.  C,  739;  Okla., 
2550. 

"  Mass.,  1894,  508,  13,  14,  16. 

3"  Neb.  Cr.  C,  245  aa. 

2'  Mass.,  1894,  504,  10. 


0:2  HANnHOOK    TO   THE   LABOR    LAW 

ages  for  such  conduct,  and  the  recovery  shall  be 
his  own  property,  and  not  belong  to  his  parents."  ^ 
There  is  a  common  provision  that,  for  pur- 
poses of  this  section  and  §§  14  and  16,  a  cer- 
tificate signed  and  sworn  to  by  the  parent  or 
guardian  may  be  accepted  by  the  employer  as 
evidence  of  the  child's  age,  so  as  to  exculpate 
him  from  penalties,  etc.^^  And  sometimes  cer- 
tificates of  the  child's  health,  ability,^  or  educa- 
tional qualifications  ^  may  be  demanded  by  the 
factory  inspectors  or  must  be  required  by  the 
employer.  And  in  cases  of  women  and  children 
operatives,  it  is  generally  required  that  employers 
shall  post  in  every  room  a  printed  notice  stating 
the  number  of  hours'  woi'k  required  on  each 
da}-,  the  hours  of  commencing  and  stopping,  and 
the  hours  for  meals.^''  And  usually  a  list  or  rec- 
ord of  all  children  under  certain  ages  so  em- 
ployed must  be  kept  and  posted  in  the  factory  or 
workshop ;  ^  or  kept  for  the  state  inspectors,  etc.^ 

^'^  Ga.  Code,  1886. 

33  N.  H.,  180,  17;  Mass.,  1894,  508,  IG,  61;  Me.,  ib.,  §§  3, 
8;  R  L  P.  S.,  169,  2;  Ct.,  ib. ;  N.  Y.,  ib.,  2;  N.  J.  Sup.,  p. 
409,  §  18;  Pa.,  ib.,  2;  111.,  1893,  p.  100,  §  4;  Mich.,  1895, 
184,  3;  Tenn.,  1893,  159;  Cal.,  1889,  7,  2. 

^  See  §  17,  note  9. 

3s  See  §  16. 

36  N.  H.,  180,  15;  Mass.,  ib.,  11;  Me.,  ib.,  2;  S.  I.,  Ct., 
N.  Y.,  Pa. ;  O.,  6986  aa ;  111. ,  1893,  p.  99,  §  6 ;  Cal. ,  1889,  7,  3. 

3'  N.  Y.,  ib.,  2 ;  111..  1893,  p.  100,  §§  4,  6 ;  Pa. 

=8R.  L,  1894,  1278;  Mass.,  1894,  508,  16;  Mich.;  0., 
6986  aa,  Cal. 


OF  THE   UNITED   STATES  63 

A  printed  form  of  such  notice  shall  be  fur- 
nished by  the  chief  of  the  district  police,  and  ap- 
proved by  the  attorney-general  in  Massachusetts 
and  Maine. 

And  finally,  a  few  states  have  laws  limiting 
child  labor  in  any  occupation.  Thus,  in  Cali- 
fornia (P.  C,  §  651),  "  Every  person  having  a 
minor  child  under  his  control,  either  as  a  ward 
or  an  apprentice,  who,  except  in  vinicultural  or 
horticultural  pursuits,  or  in  domestic  or  house- 
hold occupations,  requires  such  child  to  labor 
more  than  eight  hours  in  any  one  day,  is  guilty 
of  a  misdemeanor." 

No  child  under  sixteen  (in  Minnesota),  or 
fourteen  (in  Massachusetts),  may  be  employed 
to  labor  outside  the  family  (in  Minnesota)  in 
any  manner  between  6  p.m.  and  7  a.m.®^ 

"  The  selectmen  shall  inquire  into  the  treat- 
ment of  minors  employed  in  manufacturing 
establishments,  and  if  the  education,  morals, 
health,  food,  or  clothing  of  any  such  minor  is 
unreasonably  neglected,  or  he  is  treated  with 
improper  severity,  or  compelled  to  labor  at  un- 
reasonable times  or  manner,  they  may,  if  such 
minor  has  no  parent  or  guardian  residing  in  the 
state,  discharge  him  from  such  employment,  and 
with  his  consent  bind  him  out  as  an  appren- 
tice." ^» 

39  Mass.,  1894,  508,  14;  Minn.  P.  C,  250. 
♦"  Vt.,  2838. 


04  HANDBOOK    TO   THE    LABOR   LAW 

"Whoever  hires  or  employs,  or  causes  to  be 
hired  or  employed,  any  minor,  knowing  such 
minor  to  be  under  the  age  of  fifteen  years,  and 
under  the  legal  control  of  another,  without  the 
consent  of  those  having  such  control  for  more 
than  sixty  days,  is  guilty  of  a  misdemeanor."  ^' 

It  is  made  a  misdemeanor  to  employ  and  carry 
beyond  the  linits  of  the  state  any  minor  without 
his  parent's  consent.^- 

The  constitutionality  of  the  above  statutes,  in 
so  far  as  they  apply  to  minors,  is  undoubted  ;  it 
rests  on  the  principle  of  the  parental  position  of 
the  state  toward  persons  not  citizens  and  not 
able  to  contract  for  themselves.^^  As  to  women, 
it  has  been  placed  upon  the  same  ground  in  the 
past  and  for  that  reason,  and  because  of  the 
peculiar  provision  in  the  state  constitution,  was 
sustained  in  Massachusetts.^  On  the  other 
hand,  it  has,  by  a  late  decision  most  ably  ren- 
dered, been  denied  in  Illinois. ^^  It  seems  clear 
that,  under  the  modem  view  that  w^omen  are  cit- 
izens, capable  of  making  their  own  contracts, 
particularly  in  states  Avhere  they  have  the  right 
of  suffrage,  such  legislation  restricting  their 
hours  of  labor  is  unconstitutional,  both  on  ordi- 

*' Fla.,  2733.  «  N.  C,  1891,  45. 

«  People  V.  Ewer,  141  N.  Y.,  129.  Adam  Smith,  "  Wealth 
of  Nations,"  Bk.  I.,  Ch.  10. 

"  Commonwealth  v.  Hamilton  Mfg.  Co.,  120  Mass.,  383. 
♦'  Ritchie  v.  Hlinois,  155  HI.,  98. 


OF   THE    UNITED    STATES  65 

nary  grounds  of  denying  them  the  right  to  con- 
tract/® and  as  class  legislation  of  the  worst  sort ; 
for  such  privileges,  or  restrictions  (and  they 
would  most  probably  be  deemed  the  latter),  can- 
not be  conferred  or  imposed  upon  women  and 
not  on  men/^  Only  in  New  Hampshire,  Massa- 
chusetts, Rhode  Island,  Connecticut,  Maine,  Illi- 
nois, Wisconsin,  Minnesota,  the  Dakotas,  Vir- 
ginia, Oklahoma,  and  Louisiana  does  the  statute 
apply  to  women  of  full  age  ;  and  in  Maine, 
Michigan,  Minnesota,  Dakota,  and  Oklahoma  it 
expressly  allows  them  to  contract  for  overtime. 
This  may  save  the  statute  in  these  states  ;  but  it 
is  probable  that  in  the  others,  except  possibly  in 
New  England,  it  will  be  held  unconstitutional, 
as  it  has  been  in  Illinois. 

§  14.  Hours  of  Labor,  Special  Occupations. — 
In  a  few  other  states  there  are  general  laws  lim- 
iting hours  of  male  or  female  labor  applying 
only  to  factories  or  special  occupations.  Thus 
only  in  any  manufacturing  or  mechanical  busi- 
ness is  eight  hours  made  a  day's  work,  in  the 
absence  of  special  contract,  in  Wisconsin  and 
Ohio,  and  ten  hours  in  Minnesota ;  eight  hours 
in  Ohio,  in  mining  also  ; '  in  Rhode  Island  ^  ten 

*''  For  a  full  discussion  of  this  question,  see  §§  1-3. 

*'  Re  Leach,  134  Ind.,  665;  Minor  v.  Happersett,  21  Wall., 
162. 
'  0.  R.  S.,  4365;  Wis.  R.  S.,  1729  ;  Minn.  G.  S.,  24,  2. 
'  R.  I.  P.  S.,  169.  26. 


C()  HANDBOOK    TO    THE    LABOR   LAW 

hours  is  a  day's  work  "  in  any  manufacturing 
establislimont,  and  all  mechanical  labor,"  and  so 
in  Michigan  in  "  factories,  workshops,  salt 
blocks,  saw-mills,  logging  or  lumber  camps, 
looms  or  drives  or  other  places  used  for  mechan- 
ical, manufacturing,  or  other  purposes,  luhere  men 
or  women  are  employed"^  This  seems  broad 
enough  to  include  all  cases,  perhaps  even  agri- 
cultural labor,  and  we  Yia^^e  accordingly  noted  it 
in  §  11.  This  statute  does  not  in  Wisconsin 
apply  to  labor  by  the  week,  month,  or  year.  So 
factory  labor  of  men  (for  a  definition  oi  factory, 
see  §  13)  is  limited,  in  the  absence  of  contract, 
to  ten  hours  a  day  in  New  Jersey^  and  Mary- 
land^ and   eleven   hours,  or  sixty-six   hours   a 


2  Mich.,  1885,  137;  3  Howell  Stats.,  1997  a  5. 

*  In  all  cotton,  woollen,  silk,  paper,  glass,  and  flax  factories, 
and  in  manufactories  of  iron  and  brass.  N.  J.  Rev.,  1877, 
page  485,  17. 

°  To  the  efifect  that  no  corporation  or  manufacturing  com- 
pany engaged  in  manufacturing  cotton  or  AvooUen  yarns, 
fabrics  or  domestics  of  any  kind,  and  no  person  or  firm  own- 
ing or  operating  such  corporation  or  company  within  the 
state,  or  any  agent  thereof,  .  .  .  shall  require  or  permit 
its  employees  to  work  more  than  ten  hours  a  day,  .  .  . 
and  shall  make  no  contract  with  them  providing  for  more 
than  ten  hours'  work,  except  that  male  employees  above  twen- 
ty-one may  make  contracts  to  work  by  the  hour  for  such  time 
as  may  be  agreed  upon,  or  without  contract  may  work  for  the 
purpose  of  making  repairs  and  improvements,  and  getting 
steam  up  and  machinery  ready,  etc.,  and  have  extra  compen- 
sation.    Md.,  1888,  100,  1  and  2;  Pub.  Laws,  100,  142. 


OF   THE   UNITED   STATES  67 

week  in  South  Carolina  and  Georgia,^  and  in 
both  these  states  contracts  for  overtime  are  de- 
clared void  (but  this  provision  probably  renders 
the  statute  unconstitutional ;  see  §  11). 

3Iines. — In  the  absence  of  special  contract, 
ten  hours  in  Maryland  is  (by  a  local  law)  de- 
clared a  day's  work  in  mines ;  so  eight  hours 
in  Ohio  (probably  unconstitutional ;  see  below), 
and  by  the  Wyoming  constitution.'' 

Bailroads. — Ten  hours  in  New  York,  Ohio, 
Michigan,  and  Minnesota  is  declared  a  day's  work 


6  S.  C,  1892,  39;  Ga.,  1889,  p.  163.  The  law  reads  : 
"  The  hours  of  labor  required  of  all  persons  employed  in  all 
cotton  or  woollen  manufacturing  establishments  in  this  state, 
except  engineers,  firemen,  watchmen,  mechanics,  teamsters, 
yard  employees,  clerical  force,  and  all  help  that  may  be  needed 
to  clean  up  and  make  necessary  repairs  or  changes  in  or  of 
machinery,  shall  not  exceed  eleven  hours  per  day,  or  the 
same  may  be  regulated  by  employers,  so  that  the  number  of 
hours  shall  not  in  the  aggregate  exceed  sixty-six  hours  per 
week  :  Provided,  That  nothing  herein  contained  shall  be  con- 
strued to  prevent  any  of  the  aforesaid  employees  from  work- 
ing such  time  as  may  be  necessary  to  make  up  lost  time, 
not  to  exceed  ten  days,  caused  by  accidents  or  other  unavoid- 
able circumstances. 

"  All  contracts  made  or  entered  into,  whereby  a  longer  time 
for  labor  than  is  provided  in  the  foregoing  section  of  this  act 
shall  be  required  of  said  employees,  herein  before  described, 
shall  be  absolutely  null  and  void,  so  far  as  the  same  relates 
to  the  enforcement  of  said  contracts  with  said  employees,  any 
law,  usage,  or  custom  to  the  contrary  notwithstanding." 

'  Md.  Local  Laws,  1884,  427,  etc. ;  O.,  4365;  Wy.  Const., 
91,  1. 


68  HANDBOOK    TO   THE   LABOR  LAW 

for  all  classes  of  steam  railroad  employees ;  * 
and  so  as  to  street  railways,  in  New  York,  Mas- 
sachusetts, Michigan,  and  Washington,^  and  such 
work  must,  in  all  these  states  except  Minnesota 
and  Washington,  be  performed  within  twelve 
consecutive  hours.  In  Pennsylvania,  Mar3dand, 
California,  Louisiana,  and  New  Jersey '"  the 
statute  fixes  twelve  hours  for  street  railways ; 
and  the  statutes  usually  require  extra  pay  for 
overtime,  and  make  the  employees  infracting 
their  provisions  guilty  of  a  misdemeanor.  The 
constitutionality  of  all  of  them  may  be  ques- 
tioned. 

In  Massachusetts,  Pennsylvania,  and  Califor- 
nia contracts  for  a  longer  time  are  declared  void, 
and  in  the  latter  states  the  company  so  con- 
tracting is  liable  to  a  penalty.  The  constitu- 
tionality of  this  part  of  the  statute  can  probably 
be  sustained  in  Massachusetts  under  the  police 
power,  as  a  regulation  for  the  safety  of  the  pub- 
lic ;  but  in  California,  as  it  is  only  void  at  the 


»N.  Y.,  1892,  711;  0.,  1890,  p.  112;  Mich.,  1893,  177; 
Minn.,  1891,  17.  But  the  statute  was  declared  unconstitu- 
tional in  Ohio.     (See  below,  in  the  text.) 

»  X.  Y.,  1887,  529 ;  Mass.,  1894,  508,  9  ;  Mich.,  ib. ;  Wash., 
1895,  100. 

'"N.  J.,  1887,  112;  Pa.,  1887,  10;  Md.,  27,  142;  Cal. 
Pol.  C,  3246  (Sup't) ;  La.,  1886,  95.  In  New  Jersey  it  must 
be  twelve  consecutive  hours,  with  half-hour  intervals  for 
meals. 


OF   THE   UNITED   STATES  69 

option  of  the  employee,  it  seems  more  question- 
able. Moreover  the  statute  there  prescribes 
thirty  cents  an  hour  pay  for  overtime,  which  is 
clearly  unconstitutional. 

But  on  holidays,  and  in  case  of  accidents, 
extra  labor  may,  in  Massachusetts,  be  performed 
for  extra  pay. 

Eailroad  employees  may  not,  by  the  laws  of 
several  states,  be  compelled  to  work  more  than 
twelve,'^  fifteen,^"^  eighteen,^^  twenty,'^  or  twenty- 
four'^  continuous  hours  without  an  eight-hour 
rest  (in  New  York,  Colorado,  and  Ohio),  or  ten 
hours  (in  Georgia),  or  an  indeterminate  period  of 
rest,  as  until  the  next  day  (Minnesota  and  Col- 
orado). Except,  in  Georgia,  where  the  train  is 
detained. 

Brickyards  and  Stationary  Engines.  —  Ten 
hours  exclusive  of  meal  times,  in  brickyards 
owned  or  operated  by  corporations,  is  declared  a 
legal  day  by  a  New  York  statute  of  1893 ;  and 
in  Montana,  eight  hours  for  stationary  engi- 
neers.'^ 

The  constitutionality  of   such  laws  has  been 


»'  Ga.,  1891,  p.  186. 

'*  O.,  1892,  p.  311.     This  part  of  the  act  was  sustained  by 
the  court;  see  below. 

'^  Minn.,  1885,  20G;  Col.,  1891,  p.  284. 

1*  Minn.,  1891,  17. 

i^N.  Y.,  1892,  711,  1. 

'6  N.  Y.,  1893,  691 ;  Mon.,  1893,  p.  67, 


70  HANDBOOK    TO   THE   LABOR   LAW 

fully  discussed  above  (see  §§11  and  1-3).  Such 
laws,  if  sustained  at  all,  must  rest  on  the  police 
power  (§  4),  and  must  clearly  be  both  intended 
and  adapted  to  secure  the  safety  of  the  public. 
It  is  easy  to  see  that  such  statutes  as  those  re- 
ferred to  above,  which  provide  for  a  necessary 
rest  for  railroad  employees  after  long  periods  of 
service,  are  necessary  to  the  public  safety,  and 
no  such  statute  has  yet  been  set  aside  by  the 
courts ;  but  statutes  making  it  illegal  for  men 
to  work  more  than  eight  or  ten  hours  a  day,  or 
sucli  brief  period  as  is  clearly  not  necessary  for 
the  public  safety,  especially  when  the  employer 
is  made  guilty  of  a  criminal  offence  who  suffers 
overtime  even  by  voluntary  contract,  would  be 
held  unconstitutional  both  on  the  ground  that 
they  interfere  with  the  liberty  of  contract  of  the 
employee  and  the  j)roperty  rights  of  the  em- 
ployer, and  would  probably  also  in  most  states 
come  under  the  prohibition  of  class  legislation 
(see  §§  2,  11)  ;  and  the  Supreme  Court  of  Ohio 
has  just  set  aside  the  statute  limiting  work  by 
employees  of  a  mine  or  railroad  to  ten  hours  a 
day ;  while  the  other  branch  of  the  statute, 
Avliich  required  eight  hours'  rest  after  twenty- 
four   consecutive  hours'    work,  was  sustained.^'' 

I''  Wheeling  Bridge  Ry.  Co.  v.  Gilmore,  8  Ohio  C.  C,  658. 
The  opinion  also  contains  the  following  words  :  "  Statutes  may 
be,  and  they  sometimes  are,  held  to  be  unconstitutional,  al- 
though they  contravene  no  express  word  of  the  constitution. 


OF   THE    UNITED    STATES  71 

The  law  (March  26,  1890)  made  it  a  criminal 
offence  for  a  railroad  company  to  permit  or  re- 
quire any  employee  to  work  more  than  ten  hours, 
and  fui'ther  provided  that  he  should  receive 
extra  pay  for  overtime,  and  both  these  provisions 
were  held  unconstitutional.  The  court  did  not 
put  it  only  on  the  narrow  ground  of  class  legis- 
lation, and  further  expressly  held  that  the  fact 
that  the  law  applied  only  to  corporations  made  no 
difference,  that  private  corporations  are  regarded 
as  persons  within  the  meaning  of  the  constitu- 
tional guarantees,  and  took  the  familiar  ground 
that  the  liberty  of  making  contracts  is  absolutely 
essential  to  the  acquisition,  possession,  and  re- 
tention of  property,  the  right  to  which  is  guar- 
anteed by  §  1  of  the  Bill  of  Rights  of  the  Ohio 
constitution."* 

§  15.  Women's  and  Children's  Hours  in  Special 
Occupations. — (For  factories  generally,  stores, 
workshops,  etc.,  see  §  13.)  3Iines. — By  the  laws 
or  constitutions  of  Pennsylvania,  Indiana,  Wy- 
oming, West  Virginia,  and  Washington  no  women 


"Where  they  strike  at  the  inalienable  rights  of  the  citizen,  so  as 
to  infringe  the  spirit  of  the  instrument,  though  not  its  letter, 
they  are  ofttimes  held  to  be  unconstitutional."  (Compare 
§  1,  above.) 

"  In  this  instance,  in  our  opinion,  this  act  infringes  directly 
both  the  spirit  and  the  letter  of  the  constitution." 

"*  See,  to  the  same  effect,  People  v.  Phyfe,  13G  N.  Y.,  554, 


72  HANDBOOK    TO   THE   LABOR   LAW 

can  be  employed  in  mines  at  all,  under  penalty.^ 
And  in  several  states  no  children  under  fourteen 
or  a  neighboring  age."  And  no  child  more  than 
four  months  in  a  year,  in  Nebraska. '^  In  Kansas 
no  minor  between  twelve  and  sixteen  who  can- 
not read  and  write. 

Factories. — In  manufaxitories  of  steel,  metal, 
machine?'?/,  or  tobacco  no  child  imder  fourteen 
may  be  employed,  in  Indiana.^  In  cotton,  wool- 
len, silk,  paper,  bagging,  and  flax  factories  no 
male  or  female  under  twenty-one  can  under  con- 
tract be  employed  more  than  sixty  hours  a  week, 
or  an  average  of  ten  hours  a  day,  in  Pennsyl- 
vania (compare  §  13) ;  and  no  minor  under  thir- 
teen may  be  employed  about  such  factories,  nor 
under  sixteen  more  than  nine  mouths  a  year,  and 
who  has  not  attended  school  for  three  months 
in  the  year.^ 


'  Pa.  Dig.,  pp.  902.  1351;  Ind..  1891,  49;  W.  Va.  Code,  p. 
997,  §  13;  Wy.  Const.,  9,  3;   Wash.,  1891,  81,  12. 

'  Such  age  is  fourteen :  Pa.  Dig.,  pp.  1016,  1351  (in  an- 
thracite coalmines)  ;  O.,  1891,  p.  396;  Ind. ;  Col.,  1887,  p.  76; 
Ida.  Const.,  13,4;  S.  D.,  1890,  112,  11;  Wash.;  Mon.  P.  C, 
474;  Wy.,  ib.  Twelve:  Col.  Const.,  16,  2;  N.  J.  Sup., 
1886,  p.  380,  §  18;  Kan.  G.  S.,  3861;  lo.,  1884,  21,  13  (as 
to  boys  only)  ;  W.  Va.,  ib. ;  Pa.  Dig.,  p.  1372  (in  bituminous 
coal  mines).  Employment  under  such  age  makes  it  a  mis- 
demeanor; Ind.  R.  S.,  2244.     • 

3  Neb.  Cr.  C,  245  aa. 

*  Ind.,  1893,  78  R.  S.,  2237. 

*  Pa.  Dig.,  p.  864. 


OF   THE    UNITED    STATES  73 

We  are  now  jDrepared  to  present  the  laws  upon 
labor  hours  intelligibly  in  a  table  (see  following 
page). 

§  16.  Educational  Restrictions   on  Minors.  — 

Nearly  all  the  states  specially  impose  restrictions 
upon  the  employment  of  children  who  cannot 
read  and  write,  or  so  as  to  conflict  with  their 
common-school  attendance  ;  and  the  same  effect 
is  generally  produced  by  the  compulsory  school 
attendance  or  truant  laws.  It  is  impracticable 
to  cite  such  statutes  in  detail ;  but  we  may  note 
their  general  effect.  Thus,  in  many  states  no 
child  under  sixteen  or  fourteen  who  cannot  read 
and  write  may  be  employed  in  any  manufactur- 
ing, mechanical,  or  mercantile  establishment ;  ^ 
except  during  vacations  of  the  public  schools  ;  ^ 
except  when  a  certificate  is  obtained  from  the 
school  committee  that  such  minor's  labor  is  nec- 
essary to  the  support  of  the  family.^ 

And  in  some  states  no  child  of  any  age,  who 
cannot  read  and  write,  unless  he  attend  day 
schools  or  evening  schools  where  such  are  pro- 
vided.^ 

'  The  age  is  sixteen  (N.  II.,  93,  11;  N.  Y.,  1892,  673,  2)  ; 
fifteen  (R.  I.,  1887,  649,  11);  fourteen  (Vt.  Stats.,  713; 
Mass.,  1894,  508,  24;  La.,  1886,  43,  2);  tliirteen  (Wis., 
1889,  519). 

'  N.  Y.,  ib.,  Vt.,  N.  H.  3  jiass.,  ib.,  25. 

*  Mass.,  1894,  508,  17,  25;  O.,  1889,  p.  333,  3  (of  minors 
from  fourteen  to  sixteen  who  cannot  read  English). 


74 


HANDBOOK    TO   THE   LABOR   LAW 


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76  HANDBOOK   TO    THE   LAHOR   LAW 

In  many  states  also  no  child  or  minor  of  like 
age  can  be  so  employed  except  during  vacations 
unless  they  have  attended  school  during  a  cer- 
tain prescribed  period  for  the  year  preceding, 
varying  from  twelve  to  sixteen  weeks,  or  in  some 
states  for  the  whole  school  year,  according  to  the 
age  of  the  child.^ 

§  17.  Further  Statutory  Restrictions  upon 
Child  Labor. — In  several  states  the  employment 
of  children  or  minors  of  a  prescribed  age  is 
specially  forbidden  as  to  certain  dangerous  oc- 
cupations, such  as  running  elevators,'  stationary 
engines,  cleaning  machinery  in  motion,^  or 
dangerous  machinery  generally,  or  in  any  em- 
ployment where  the  child  is  put  in  danger  of 
life  or  limb,^  or  in  occupations  unwholesome  or 
dangerous  to  health,^  without  a  physician's  cer- 

*N.  H.,  93,  12;  Me.,  1887,  139,  6;  Vt.,  712;  Mass.,  1894, 
508,  13,  U,  17;  R.  I.,  1887,  649,  6;  Ct.,  2105;  N.  Y.,  1874, 
421;  Mich.,  5174,  g.  h. ;  Pa.  Dig.,  p.  864,  §  6;  O.,  1889,  p. 
333;  N.  J.  Sup.,  p.  937,  §  77;  Wis.,  1728;  Col.,  1889,  p. 
59;  N.  D.,  1890,  62,  143;  La.,  1886,  43. 

'  Mass.,  1894,  508,  32 ;  N.  Y.,  1892, 673,  3 ;  Pa.  Dig.,  p.  1016. 

2  Mass.,  ib.,  31;  Mich.,  1895,  184,  3;  R.  I.,  1894,  1278,  6; 
La.,  1882,  60;  N.  J.  Sup.,  p.  773,  §  17. 

»  O.,  1890,  p.  161,  §  9;  N.  Y.  P.  C,  292;  Ct.,  1417;  R.  I., 
97,  1;  Pa.,  ib.;  111.,  38,  82;  Mich.,  1895,  184,  3;  Mo.,  1895, 
p.  205;  Wy.,  1895,  46;  lud.  R.  S.,  2241;  Del.,  1879,  150, 
1;  Col.,  1885,  p.  125. 

*  N.  J.,  1887,  177,  7;  Ct.,  O.,  N.  Y.,  Pa.,  Mo.,  Wy.,  Ind., 
111.,  Mich.,  R.  I. 


OF   THE   UNITED   STATES  77 

tificate ;  ^  and  in  other  states  the  inspector  of 
factories  or  chief  of  police  may  designate  certain 
employments  as  so  injurious  to  health  of  chil- 
dren and  thereafter  they  may  not  be  employed 
therein.^  The  factory  inspectors  are  in  some 
states  given  jDower  to  demand  physicians'  certifi- 
cates of  the  physical  ability  of  children  in  all 
cases  of  factory  or  workshop  employment.' 

So  there  are  generally  statutes  forbidding  the 
employment  of  children  under  a  certain  age  in 
occupations  injurious  to  their  morals,^  under 
penalty  of  misdemeanor,  etc.;  and  specially  for- 
bidding their  employment  in  theatrical  exhi- 
bitions or  circuses,^  siiiging,  ragpicking,  mendi- 
cancy, street  music,  etc.,  or  begging.'^  The  pre- 
scribed age  in  this  latter  class  of  employments 

'  N.  J. 

•  Mass.,  1894,  508,  15. 

'  III.,  1893,  p.  101,  §  4;  Mich.,  1895,  184,  4. 

»  O.,  1890,  p.  161,  §  9 ;  N,  Y.  P.  C,  292 ;  R.  I.,  97,  1 ;  Ct. ; 
N.  J.  Sup.,  p.  195,  §§  24,  26;  Ind.,  111.,  Mich.,  Mo.,  1895,  p. 
205;  Wy.,  1895,  46,  1;  Pa.  Dig.,  p.  1015;  Col.,  1885,  p.  124. 

'Mass.,  1894,  508,  49;  N.  H.,  265,  3;  Ind.  R.  S.,  2242; 
Pa.  Dig.,  p.  1015;  O.,  6984;  N.  Y.  P.  C,  292;  III.;  Mich., 
1998;  R.  I.;  Minn.  P.  C,  250;  Kan.,  1889,  104;  Ct.,  Mo.; 
Cal.  P.  C,  272;  Col.;  Mon.  P.  C,  472;  Wy.,  1895,  46,  1; 
Md.,  27,  273;  D.  C,  U.  S.  Stats.,  1885,  58;  Del.,  1879, 
1.50,  2  ;  Ga.,  4612  (f)  (unless  the  child  have  attended  school 
for  four  months  of  the  year  preceding) . 

'»  R.  I.,  Ct.,  N.  J.,  N.  Y.,  Pa.,  Mich.,  Ind.,  R.  S.,  2242; 
111.,  Kan.,  Minn.,  Cal.,  Col.,  Mon.,  Md.,  Del.,  Mo.,  Wy., 
D.  C,  La.,  1886,  43,  2. 


78  HANDBOOK    TO   THE   LABOR    LAW 

(shows  and  begging)  varies  from  eighteen  to 
twelve."  These  laws  are,  of  com-se,  constitu- 
tional '-  (see  §  13). 

Minors  are  generally  entitled  to  their  wages 
free  from  any  claim  on  the  part  of  parent  or 
guardians  unless  the  employers  are  notified.'^ 
And  in  Ohio  "  wages  may  not  be  retained  from 
minors  for  alleged  negligence  or  incompetence, 
nor  any  guarantee  made  with  such  minors. 

§  18.  Further  Statutory  Restrictions  upon  Fe- 
male Labor. — The  clear  tendency  of  the  law 
throughout  the  United  States  is  to  make  no  dis- 
tinction in  civil,  industr^l,  or  social  rights  be- 
tween the  sexes  while  reserving  the  distinction 
as  to  political  and  military  rights  or  duties.  All 
occupations  are  now  thrown  open  to  women  and 
they  are  generally  given  full  rights  of  contract. 
The  legal  profession  remains  the  only  one  not 

"  Thus  eighteen,  in  New  Jersey  and  Indiana,  as  to  shows, 
immoral  occupations,  etc.  So,  as  to  mendicancy,  etc.,  in 
Pennsylvania;  sixteen  (R.  I.,  N.  Y.,  Mich.,  Minn.,  Cal., 
Mon.,  Md.,  O.,  R.  S.,  694 ;  see  note  3  above)  ;  fifteen  (Mass., 
Pa.,  Ind.,  HI.,  Del.);  fourteen  (N.  H.,  O.,  1890,  p.  161— 
see  note  1  above — Kan.,  Col.,  D.  C,  Mo.,  Wy.) ;  twelve 
(Ct.,  X.  J.,  Ga.).  In  New  York  the  phrase  is  "  apparently  or 
actually  under  the  age  of  sixteen."  Quaere  whether  this  is 
constitutional. 

''  People  V.  Ewer,  141  N.  Y.,  129. 

i»  See  N.  Y.,  1850,266;  Minn.,  1893,  35,  for  specimen  stat- 
utes. 

'*  O.,  1893,  pp.  55-57.     Compare  §  9. 


OF   THE   UNITED   STATES  79 

generally  thrown  open  to  her  by  the  law ;  and 
this  exception  rests  upon  the  ground  that  mem- 
bership in  the  bar  is,  in  a  sense,  a  political 
office ;  in  the  same  manner  she  is  not,  except  in 
the  woman-suffrage  states,  required  to  serve  on 
juries. 

There  is  therefore  no  necessity  for  an  express 
statute,  yet  some  states  have  deemed  wise  to 
enact  one.  Thus,  in  Illinois,  California  (by  the 
constitution),  and  Washington 

"  No  person  shall  be  precluded  or  debarred 
from  any  occui3ation,  profession,  or  employment 
(except  military)  on  account  of  sex :  Provided 
that  this  act  shall  not  be  construed  to  affect 
the  eligibility  of  any  person  to  an  elective 
office."  1 

But  "  Nothing  in  this  act  shall  be  construed 
as  requiring  any  female  to  work  on  streets  or 
roads,  or  serve  on  juries."  ^ 

But,  on  the  other  hand,  in  a  few  states  we  find 
a  statute  that  "  The  employment  of  women  is 
forbidden  in  houses  where  liquor  is  sold  at  re- 
tail.^ The  reasonableness  of  this  law  is  unques- 
tionable, and  hence  its  constitutionality  under 
the  "  police  power "  (see  §  4),  save  in  states 
which  have  adopted  the   most  radical   modem 


'  111.,  48,  4;  Cal.  C,  20,  18;  Wash.,  1890,  p.  519. 

«  111.,  48,  5. 

»La.,  1894,  43;  Wash.,  1895,  90. 


80  HANDBOOK    TO   THE   LABOR   LAW 

view  of  the  emancipation  of  the  sexes.  But  in 
California,  for  this  reason  a  similar  ordinance, 
passed  by  the  city  of  San  Francisco,  was  held 
unconstitutional  by  the  California  Supreme 
Court. '  On  the  other  hand,  it  has  in  Ohio  been 
declared  constitutional.^  And  the  same  remarks 
apply  to  the  nearly  universal  law  providing 
under  penalty  that  seats  shall  be  supplied  to 
female  employees  in  manufacturing  or  mechan- 
ical establishments,  mercantile  establishments, 
and  stores,^  offices,''  schools,^  hotels,^  restaurants, 
etc. ;  and  also  separate  toilet-rooms,  screened 
stairways,^''  and  similar  provisions  for  health  and 
decency.  The  constitutionality  of  these  statutes 
has  never  been  questioned,  and  there  would  ap- 
pear to  be  no  doubt  of  it. 

4  Case  of  Mary  Maguire,  57  CaL,  604. 

*  Bergman  v.  Cleveland,  39  O.  S..  G51. 

•N.  H.,  1895,  16;  Mass.,  1894,  508,  30;  R.  I.,  1894,  1278, 
8;  Ct.,  1893,  77;  N.  Y.  R.  S.,  p.  1089;  N.  J.  Sup.,  p.  360; 
Pa.  Dig.,  p.  902;  O.,  1891,  p.  87;  Ind.,  1891,  120;  1893, 
168;  Mich.,  1997,  b  4;  lo.,  1892,  47;  Minn.,  1889,  10;  R.  S., 
2224;  Neb.  Cr.  C,  2450;  Mo.,.  3500,  1891,  p.  179;  Cal., 
1889,  5;  Col.,  1885,  p.  297;  Wash.,  1890,  p.  104;  Md.  Local 
Laws,  1888,  398;  Del.,  1887,  238;  Ga.,  1889,  p.  167;  Ala., 
1889,  92  (in  stores  only);  La.,  1886,  43,  5. 

■>  Ind.,  Minn.,  Neb.,  Wash.,  Md.,  ib. 

8  Neb.,  Wash.,  Md.,  ib. 

^  Minn.,  Mich. ;  "  in  any  business,"  Ind.,  Minn.,  ib. 

'0  Mass.,  ib.,  33;  R.  I.,  ib. ;  Ct.,  2267;  N.  J.  Sup.,  pp.  773, 
21-22;  Pa.  Dig.,  p.  866;  0.,ib.;  Mich.,  1895,  184,  7,  10; 
Minn.,  1893,  77;  Cal. 


OF   THE    UNITED   STATES  81 

§  19.  Sundays  and  Holidays.— The  rights  of 
laborers  to  rest  one  day  in  tlie  Aveek  are  commonly 
guaranteed  by  the  ordinary  statutes  relating  to 
the  observance  of  Sunday,  which  are  practically 
universal  throughout  the  country,  but  a  few 
states  have  special  provisions ;  thus,  in  California, 
that  "  all  employers  must  grant  employees  one 
day  in  seven  for  complete  rest  from  labor."  ^ 
Besides  Sunday  or  the  Jewish  Saturday,  four 
states  have  thus  far  passsd  laws  making  Satur- 
day for  banking  purposes  a  half  holiday  through- 
out the  year.2  Nearly  all  the  states  have  adopted 
a  special  holiday  called  Labor  Day,  usually  the 
first  Monday  in  September.^  But  in  some  states 
it  is  the  first  Saturday  in  September,^  while  in 
Wisconsin  it  is  fixed  by  proclamation  each  year.^ 

§  20.  Fines  and  Deductions  for  Imperfect  Work 
and  Injury  to  Machinery  or  Goods. — Two  states 
have  so  far  enacted  laws  attempting  to  prevent 

1  Cal.,  1893,^1. 

2  Mass.,  1895,  415;  N.  Y.,  1887,  289;  N.  J.,  1891,  43;  Col., 
1893,  102 ;  but  in  Colorado  the  law  applies  in  the  city  of 
Denver  only,  and  for  the  three  summer  months.  In  Mas- 
sachusetts the  statute  only  applies  for  banking  purposes. 

^N.  H.,  180,  24;  Mass.,  1887,  263;  R.  I.,  1893,  1212;  Ct., 
1889,20;  N.  Y.,  1887,  289;  N.  J.,  1895,  392;  Ohio,  1890, 
p.  355;  lo.,  1890,  45;  Neb.,  1889,  92;  Del.,  1893,  695;  Va., 

1892,  106;   Texas,   1893,   7;  Col.,  1887,  p.  327;  Utah,  1892, 
13;  S.  C,  1891,  720;  Ga.,  1893,  p.  115;  Ala.,  1892,  59;  Fla., 

1893,  84;  Minn.  R.  S.,  7987;   1893,  89;  Ore.,  1893,  p.  103. 
*  Pa.,  1893,  138.  "  Wis.,  1893,  271. 

6 


82  HANDBOOK    TO   THE   LABOR   LAW 

the  withholding  of  wages  or  the  imposition  of  a 
fine  by  the  employer  for  imperfect  work,  and 
declaring  illegal  or  penal  even  voluntary  con- 
tracts between  the  employer  and  employee  to 
that  effect.  That  of  Ohio  '  simply  provides  that 
"  whoever,  without  an  express  contract  with  his 
employee,  deducts  or  retains  the  wages,  or  any 
part  of  the  wages,  of  such  emplo3'ee  for  ware, 
tools,  or  machinery  destroyed  or  damaged,  shall 
be  liable  to  like  punishment  and  penalties  above 
specified,  and  shall,  in  addition  thereto,  be  liable 
in  civil  action  to  the  party  aggi-ieved  in  double 
the  amount  of  any  charges." 

In  Massachusetts  the  first  act^  provided  that 
no  person  or  corporation  should  be  entitled  to 
retain  any  part  of  the  wages  of  any  weaver  in  its 
employ  by  way  of  fine  or  deduction  for  imper- 
fect weaving,  except  in  accordance  with  a  posted 
list  of  fines,  nor  unlesro  such  imperfect  weaving 
was  due  to  wilfulness,  incapacity,  or  negligence 
of  the  weaver,  and  the  imperfection  was  discov- 
ered when  the  work  was  first  examined,  and  was 
shown  to  the  weaver  forthwith,  and  that  the 
amount  so  retained  should  not  exceed  the  actual 
damage. 

In  1891  this  act  was  superseded  by  a  new 
law,^  providing  that  "  no  employer  shall  impose 


>0.,  1891,  319.  2  jiass.,  1887,  361. 

3  Mass.,  1891,   125. 


OF   THE   UNITED   STATES  83 

a  fine  upon,  or  withhold  the  wages  or  any  part 
of  the  wages  of,  an  employee  engaged  at  weaving 
for  imperfections  that  may  arise  during  the  pro- 
cess of  weaving. 

"Any  employer  who  shall  violate  the  pro- 
visions of  this  act  shall  be  subject  to  a  fine  of 
not  more  than  one  hundred  dollars,  and  for  a 
second  and  subsequent  violation  of  this  act  shall 
be  fined  not  more  than  three  hundred  dollars." 

The  same  year  indictments  were  found  against 
Perry,  a  woollen  manufacturer,  and  the  Po- 
tomska  Mills,  a  cotton  manufacturing  corpora- 
tion, for  violation  of  the  statute.  The  court,  by  a 
majority  opinion,*  held  that  both  the  quoted  sec- 
tions were  unconstitutional,  saying  that  "  if  the 
act  went  no  further  than  to  forbid  the  imposi- 
tion of  a  fine  by  an  employer  for  imperfect  work 
it  might  be  sustained  as  within  the  legislative 
power  conferred  by  the  constitution  of  this  com- 
monwealth.^ .  .  .  There  are  certain  funda- 
mental rights  of  every  citizen  which  are  recog- 
nized in  the  organic  law  of  all  our  free  Ameri- 
can States.  A  statute  which  violates  any  of 
these  rights  is  unconstitutional  and  void,  even 
though  the  enactment  of  it  is  not  expressly  for- 
bidden. Article  1  of  the  Declaration  of  Rights 
in  the  Constitution  of  Massachusetts  enumerates 


*Com.  V.  Perry,  155  Mass.,  117. 

'Mass.  Const.,  Chap.  1,  §  1,  Art.  4.     For  a  full  discussion 
of  this  peculiar  constitutional  provision  see  §§1  and  2. 


84  HANDBOOK    TO   THE   LABOR   LAW 

among  the  natural,  inalienable  rights  of  men  the 
right  '  of  acquiring,  possessing,  and  protecting 
property.'  .  .  .  The  right  to  acquire,  pos- 
sess, and  protect  property  includes  the  right  to 
make  reasonable  contracts,  which  shall  be  under 
the  protection  of  the  law." 

On  the  same  day  a  similar  decision  was  ren- 
dered in  the  case  against  the  Potomska  Mills, 
which  is  interesting,  as  showing  that  the  Massa- 
chusetts courts  at  least,  like  Ohio,  and  contrary  to 
Missouri  and  Khode  Island,  recognize  no  distinc- 
tion between  the  power  of  the  legislature  to  limit 
the  contracts  of  private  persons  and  those  of  cor- 
porations. Mr.  Justice  Holmes  dissented  from 
the  majority  of  the  court  in  both  cases,  on  the 
ground  that  no  express  provision  could  be  found 
in  the  United  States  or  Massachusetts  Constitu- 
tions, and  none  implied  upon  a  fair  and  historical 
construction,  which  prevented  the  legislature 
from  depriving  a  certian  class  of  a  contract  right 
which  they  might  be  using  for  a  dishonest  pur- 
pose ;  that  the  legislature  were  the  sole  judge  of 
the  reasonableness  of  the  law,  and  the  court 
could   know  nothing  about  the  matter, **  citing 

*The  courts  are  sole  judge  of  the  reasonableness  of  a  law 
under  the  constitutional  provisions  of  Maine  and  Massachu- 
setts, that  the  legislature  may  make  all  reasonable  laws,  etc. 
(see  §  2).  Moore  v.  Veazie,  32  Me.,  360.  But  though  the 
legislature  may  forbid  contracts  against  public  policy,  or  es- 
tablish regulations  under  the  police  power,  these  being  ju- 


OF  THE   UNITED   STATES  85 

Hancock  v.  Yaden,''  and  it  would  seem  as  if 
this  position  had  been  practically  sustained  in 
the  later  decision  rendered  bj  the  same  court  in 
1895,  as  to  the  constitutionality  of  a  general 
weekly  payment  law.^ 

Accordingly,  in  1892,  a  new  statute  was  passed  ^ 
merely  providing  that  imperfections  complained 
of  should  be  pointed  out  to  the  person  whose 
wages  were  to  be  aifected  thereby,  and  this  was 
was  substantially  re-enacted  in  a  Massachusetts 
general  labor  law  of  1894,^"  and  another  statute 
passed  requiring  the  manufacturers  of  cotton 
factories  to  supply  tickets  containing  specifica- 
tions with  each  warp  to  every  weaver  paid  by 
the  piece,  cut,  or  yard.  To  these  latter  statutes 
there  can,  of  course,  be  no  constitutional  objec- 
tion. 

As  the  Ohio  statute  quoted  above  expressly 
reserves  express  contracts  for  such  deductions, 
and  the  Massachusetts  decision  has  been  gener- 
ally quoted  with  approval  by  Western  courts, 
we  conclude  that  the  law  to-day  is  that,  while 
possibly  a  statute  forbidding  the  imposition  of 

dicial  principles,  are  not  thereby  removed  from  the  scrutiny 
of  the  courts  to  see  that  they  are  in  fact  such.  Erisbie  v. 
U.  S.,  157  U.  S.,  160;  in  re  Jacobs,  98  N.  Y.,  98. 

'121  Ind.,  366.  And  see  the  Slaughter  House  cases,  16 
Wall,  36. 

*  Opinion  of  Justices,  163  Mass.,  589.     See  hereafter  §  21. 

»Mass.,  1892,  410. 

'"Mass.,  1894,  508,  55;   1894,  534. 


86  HANDBOOK    TO   THE   LABOR   LAW 

ai-bitrary  fines  would  be  sustained,  there  can  be 
no  law  passed  forbidding  employers  to  make  de- 
ductions from  wages  proportionate  to  the  dam- 
age or  loss  caused  by  actual  imperfect  work. 
The  question  of  damage  to  tools  or  machinery 
might,  however,  rest  on  a  different  basis,  that 
this,  being  recoverable  in  an  action  of  tort,  could 
not  be  set  off  against  an  action  of  contract,  and 
that  therefore  the  employee  might  recover  his 
wages  in  full,  and  leave  the  employer  to  his  ordi- 
nary remedies  for  such  injury. 

In  other  states,  in  the  absence  of  a  statute, 
the  imposition  of  fines  fixed  by  contract  for  bad 
and  imperfect  work  has  been  sustained,  and 
hence  such  contracts  recognized  as  legal; ^^  and 
so  in  England ;  ^-  and  they  are  undoubtedly  legal 
under  the  common  law.  The  imposition  of  such 
contracts  may  be  resisted  by  the  trades-unions, 
or  by  laborers  individually  refusing  to  assent  to 
them ;  the  legislatures  have  no  power  to  prohibit 
them. 

"  "A  provision  in  a  written  contract  of  hiring  between  a 
railway  company  and  a  conductor  on  its  cars  provided  that  if 
the  latter  received  any  fare  from  any  passenger  (a  fare  being 
five  cents)  he  should  be  liable  to  a  fine  of  fifteen  dollars, 
which  might  be  deducted  from  his  wages  :  Held,  that  the 
fifteen  dollars  were  intended  to  be  liquidated  damages,  and 
not  a  penalty,  and  that  the  agreement  for  payment  of  it 
could  be  enforced."  Birdsall  v.  Twenty-third  St.  Ry.  Co., 
8  Daly,  419. 

'•^  Bowes  V.  Press,  70  L.  T.  R.,  116. 


OF   THE    UNITED   STATES  87 

§  21.  Time  of  Payment  of  Employees  ;  Week- 
ly Payment  Laws. — Weekly  or  fortnightly  pay- 
ment laws  have  now  been  enacted  in  fourteen 
states  ; '  but  in  most  of  these  states  they  apply 
to  corporation  employers  only,^  in  several  only  to 
manufacturing  companies,^  or  to  mining  labor. 
In  Ohio  the  law  includes  street  railways  and  rail- 
road contractors,  but  in  Massachusetts  it  does 
not  include  steam  railroads. 

In  Wisconsin  the  law  does  not  apply  if  there 
be  a  written  contract  to  the  contrary ;  while  in 


1  Weekly :  N.  H.,  180,  21 ;  Mass.,  1894,  508,  51,  1895, 
438;  R.  I.,  1891,  918;  Ct.,  1749;  N.  Y.,  1890,  388,  1895, 
791;  Ind.,  1893,  114;  R.  S.,  7059  (as  to  mining  and  manu- 
facturing companies  only)  ;  111.,  1891,  p.  213  ;  Wis.,  1889, 
474;  Kan.,  1893,  187.  Fortnightly:  Me.,  1887,  134;  Pa., 
1887,  121,  O.,  1887,  214;  R.  S.,  8769;  Wy.,  1891,  82;  W. 
Va.  Code,  p.  1003,  §  2.  Monthly :  Va.,  1887,  391,  1-2;  Ind. 
R.  S.,  7056;  Mo.,  2538;  Tenn.  Ex.  Ses,,  1891,  p.  5, 
Weekly  or  monthly:  Cal.,  1891,  146;  in  Connecticut  eighty 
per  cent,  only  need  be  paid  weekly,  the  balance  monthly. 
Ct.,  1750. 

■^  So  in  all  states  above  mentioned  except  Massachusetts, 
Wisconsin,  Maine,  Indiana,  Pennsylvania,  Tennessee,  Wy- 
oming. In  Massachusetts  they  apply  to  all  persons,  etc.,  en- 
gaged in  any  manufacturing  business,  and  having  more  than 
twenty-five  employees,  or  in  Maine,  ten ;  but  there  is  no  pen- 
alty imposed  except  upon  corporations. 

*  Pa.,  Ind.,  O.,  Va.,  W.  Va. ;  in  New  York  and  Maine  they 
apply  to  substantially  all  corporations  but  street  railroads ; 
as  to  which  monthly  payments  are  required  in  New  York, 
not  later  than  the  twentieth  of  the  month. 

*0.,  Pa.,  xMo.,  1891,  p.  183;  Ind.,  Wy.,  Va.,  W.  Va. 


88  HANDBOOK   TO   THE    LAIIOr.    LAW 

Indiana  contracts  in  waiver  of  sucli  rights  are 
expressly  declared  illegal ;  ^  and  in  several  the 
whole  law  has  been  declared  unconstitutional," 
In  Ehode  Island  the  law  has  been  declared 
constitutional,  as  it  relates  to  corporations  only. 
The  Supreme  Court  of  Massachusetts  stands 
thus  far  alone  in  declaring  it  constitutional  as 
to  natural  persons,''  the  Colorado  court  having 
recently  refused  upon  a  technicality  to  render  an 
opinion  on  the  subject,^  though  it  is  clear  from 
its  opinion  on  the  eight-hour  law  (see  §  11),  that 
its  opinion,  if  rendered,  would  have  been  adverse. 
And  the  times  of  such  periodical  payments 
are  fui'ther  defined  in  several  states ;  thus,  not 
later  than  Friday  of  each  week  in  Kansas,  or 
eight  days  after  the  week's  expiration  in  New 
Hampshire  and  Connecticut,  or  six  days  there- 
after in  New  York,  Illinois,  and  Massachusetts. 
So  in  others  the  full  amount  due  up  to  within 
fifteen  days  must  be  paid  ;  ^  and  in  Alleghany 
County,  Maryland,  if   the  wages  of   miners  or 


''  Tnd.  R.  S.,  7071.  So,  in  New  York,  the  company  is  for- 
bidden to  require  them. 

*  Arkansas,  Texas,  Illinois,  and  probably  it  would  be  so 
held  in  Missouri,  West  Virginia,  and  others ;  see  below,  and 
in  §  23. 

''  See  below  in  the  text. 

8  Re  House  Bill  107,  39  Pac,  431. 

*  Mo.,  Pa.,  or  ten  days  (O.),  or  twenty  days  (W.  Va.,  tJ., 
§  5),  or  nine  days  (R.  I.). 


OF  tup:  united  states  89 

manufactui-ing  employees  remain  unpaid  thirty 
days  the  court  may  appoint  a  receiver  of  the  de- 
linquent employer.  ^° 

Employers  failing  to  comply  vdth.  these  laws 
are  commonly  made  liable  to  a  fine  ^^  or  to  in- 
creased damages  to  the  employee.'' 

Thus,  any  corporation  or  person  failing  for 
ten  days  after  demand  to  pay  employees  for 
labor,  is  liable  to  a  penalty  of  one  dollar  for 
each  succeeding  day,  and  an  attorney's  fee  ;  '^  so 
due  bills  must  be  issued  for  labor  due  up  to  the 
date  of  demand  of  jjayment,  whenever  such  de- 
mand is  made,  which  due  bills  must  be 
negotiable  and  redeemable  in  cash  ;  '^  and  thirty 
days'  notice  of  a  reduction  in  rate  of  wages  is 
required  from  all  corporations. 

Weekly  payments  by  large  employers  of  labor 
are  certainly  to  the  advantage  of  the  laborer. 
They  tend  to  prevent  both  waste  and  the  attach- 
ment of  wages  by  creditors.  Nevertheless,  the 
disadvantage  of  permanently  forbidding  by  law 
contracts  ordinarily  free  was  curiously  shown  in 
the  late  panic,  when  many  companies  or  firms 
desirous  of  going  on  provided  they  could  make 

•"  Mfl.  Loc.  L.,  Alleghany  Co.,  §  189. 
"  Ind.  R.  S.,  70G9. 

'-  Mo.,  2.-)39;  Ind.  K.  S.,  7057,  70G8;  but  see  note  6,  and 
compare  §  23. 
•3  Ind.,  ib. 
'4  Mo.,  7059. 


90  HANDBOOK    TO   THE   LABOR   LAW 

an  extension  of  time  of  payment  with  their  em- 
ployees, were  prevented  from  so  doing  imder 
such  statutes,  although  the  employees  Avere 
more  than  willing  to  accept  half  their  wages  in 
,cash  and  wait  for  the  balance  rather  than  have 
the  factory  closed.  As  to  private  individuals, 
however,  weekly  payment  statutes  have  been 
declared  unconstitutional  in  every  court  where 
they  have  been  discussed,  with  the  exception 
only  of  that  of  Massachusetts.'^  In  Ehode 
Island  alone  has  the  law  been  sustained  as  to 
corporations,  while  in  Missouri  and  Texas,  w'here 
it  applied  solely  to  certain  classes  of  corpora- 
tions, it  was  declared  void  as  class  legislation. 

Thus,  in  Texas,  where  the  first  case  arose,'^ 
the  statute  provided  that  in  the  event  of  the 
railway  company  refusing  to  pay  wages  to  an 
employee  within  fifteen  days  of  demand,  it 
should  be  liable  to  pay  twenty  per  cent,  on  the 
amount  due  him  as  damages  in  addition  thereto. 
The  court  held  that  while  railwaj's  occupied  a 
two-fold  character,  public  and  private,  and  might 
be  regulated  as  a  highway,  they  could  not  be 
specially  regulated  as  a  corporation  in  all  their 
internal  economy,  and  that  although  the  doctrine 
is  often  stated  that  a  statute  is  not  subject  to  the 
objection   of    being    class   legislation   when    it 


''  Opinions  of  Justices,  163  Mass.,  589. 

'«  San  Antonio  &  A.  P.  Ry.  Co.  v.  Wilson,  19  S.  W.,  910. 


OF   THE   UNITED   STATES  91 

aflfects  equally  all  who  are  brought  within  the 
relations  and  circumstances  provided  for,  it  by 
no  means  follows  that  the  legislature  has  the 
right  to  impose  any  burden  while  simply  placing 
it  on  all  the  individuals  of  a  certain  class.  "  It 
must  rest  upon  some  reason  upon  which  it  could 
be  defended.  .  .  .  No  well-considered  case 
can  be  found  sustaining  a  penalty  on  an  ordinary 
contract  where  public  interest  was  not  involved. 
.  .  .  An  exception  that  undertakes  to  single 
out  a  single  class  and  attach  a  penalty  to  a  fail- 
ure to  pay  one  class  of  their  creditors  is  not 
*  the  law  of  the  land  '  and  cannot  be  sustained." 

There  is  no  special  provision  in  the  Texas 
constitution  against  class  legislation,  and  the 
court  apparently  based  its  decision  on  the  Four- 
teenth Amendment  to  the  United  States  consti- 
tution, siding  with  the  minority  opinion  in  the 
Slaughter  House  cases, ^^  or  upon  the  general 
principle  that  such  legislation  would  be  invalid 
without  an  express  constitutional  prohibition. 

The  next  case  was  the  case  of  an  ordinary 
weekly  payment  law,  but  applying  only  to  the  em- 
ployees of  corporations,  and  occurred  in  Rhode 
Island.'^  Here  the  court  denied  that  the  Four- 
teenth Amendment  applies  to  such  a  case,  on 
the  ground  that  the  law  was  but  a  valid  exercise 

"  16  Wall,  36. 

'*  State  V.  Brown  &  Sharpe  Mfg.  Co.,  25  Atlantic  Rep., 
246.     Qucere  as  to  the  law  of  this  case. 


02  HANDBOOK   TO   THE   LABOR   LAW 

of  the  power  reserved  to  the  legislature  to  amend 
or  repeal  acts  of  iucorporation,  and  that  a  cor- 
poration was  not  a  citizen  of  the  United  States 
within  the  meaning  of  the  Foui'teeuth  Amend- 
ment ;  and  noted  that  the  act  still  permitted 
employees  of  such  corporations  to  be  paid  by 
the  job  or  by  the  piece. 

To  the  same  effect,  as  to  corporations,  was  the 
Arkansas  case  arising  in  1894,'*  but  it  held  that 
an  act  of  Ai'kansas  requiring  corporations  and 
persons  operating  or  constructing  railroads,  to 
pay  their  employees  on  the  day  of  discharge  the 
unpaid  wages  then  earned  by  them  at  the  con- 
tract rate,  without  abatement  or  reduction,  was 
only  valid  in  so  far  as  it  applied  to  corporations. 
The  court  differed  from  the  Texas  coiu't,  on  the 
groimd  of  class  legislation,  denying  that  it  fell 
within  the  prohibition  of  special  legislation,  for 
the  reason  that  it  was  general  and  uniform  in  its 
operations  on  all  persons  coming  within  the  class 
to  which  it  applied ;  but  affirmed  the  right  to 
contract  of  individuals,  disapproved  Hancock  v. 
Yaden,"^  and  declared  that  part  of  the  act  un- 
constitutional which  api^lied  to  private  individ- 
uals. Mr.  Justice  Bunn,  however,  filed  a  dis- 
senting opinion  to  the  effect  that  the  whole  stat- 
ute was  unconstitutional. 

But  the  case  of  Braceville  Coal  Co.  v.  People, 

13  Leep  V.  Ry.  Co.,  25  S.  W.,  75. 
50  121  Ind.,  3GG  (see  §23). 


OF  THE   UNITED   STATES  93 

decided  by  the  Supreme  Court  of  Illinois  in 
1893,2'  declared  directly  that,  even  a  law  provid- 
ing that  certain  classes  of  corporations  (which 
classes  included  all  corporations  for  profit) 
should  pay  weekly  each  and  every  employee 
engaged  in  its  business,  the  wages  earned  by 
such  employee  to  within  six  days  of  the  date 
of  such  employment,  and  forbidding  contracts 
for  other  times  of  payment,  was  imconstitu- 
tional  under  the  provision  of  the  constitution 
of  Illinois,  Section  2,  Article  2,  identical  with 
that  of  the  Federal  Fourteenth  Amendment,  that 
"  no  person  can  be  deprived  of  life,  liberty 
or  property  except  by  due  process  of  law ;  " 
and  that  it  was  also  contrary  to  that  provis- 
ion of  the  Illinois  constitution  which  forbids 
corporate  charters  from  being  amended  by 
special  laws,  since  it  attempts  to  amend  the 
charters  of  the  kinds  of  corporations  named  in 
the  act,  while  not  affecting  others  created  under 
the  same  general  laws.  As  there  is  no  such 
constitutional  limitation  in  Rhode  Island,  the 
reason  of  this  branch  of  the  case  does  not  im- 
pair the  Rhode  Island  decision ;  but  on  the 
former  point  the  case  appears  conclusive,  at  least 
under  such  states  as  have  the  constitutional  pro- 
vision against  depriving  persons  of  property 
without  due  process  of  law,'^^  and  perhaps  in  the 

»'35N.  E.,  C2.  "See  §2. 


94  HANDBOOK    TO   THE   LABOK   LAW 

others  under  the  Federal  Fourteenth  Amend- 
ment. The  court  say  that  "  the  words  '  due 
j)rocess  of  law '  are  to  be  held  synonymous  with 
*  the  law  of  the  land,'  and  this  means  general 
public  law,  binding  upon  all  the  members  of 
the  community  under  all  circumstances,  and 
not  partial  or  private  laws,  affecting  the  rights 
of  private  individuals  or  classes  of  individuals. 
There  can  be  no  liberty,  protected  by  gov- 
ernment, that  is  not  regulated  by  such  laws 
as  will  preserve  the  right  of  each  citizen  to  pur- 
sue his  own  advancement  and  happiness  in  his 
own  way,  subject  to  the  restraints  necessary  to 
secure  the  same  right  to  all  others.  The  funda- 
mental principle  upon  which  liberty  is  based  in 
free  and  enlightened  government  is  equality 
under  the  law  of  the  land.  It  has  accordingly 
been  everywhere  held  that  liberty,  as  that  term 
is  used  in  the  constitution,  means  not  only  free- 
dom of  the  citizen  from  servitude  and  restraint, 
but  is  deemed  to  embrace  the  right  of  every 
man  to  be  free  in  the  use  of  his  powers  and 
faculties,  and  to  adopt  and  pursue  such  avo- 
cation or  calling  as  he  may  choose,  subject 
only  to  the  restraints  necessary  to  secure  the 
common  welfare.  .  .  .  Property,  in  its 
broader  sense,  is  not  the  physical  thing  which 
may  be  the  subject  of  ownership,  but  is  the 
right  of  dominion,  possession,  and  power  of 
disposition  which  may  be  acquired  over  it.     And 


OF  THE   UNITED   STATES  95 

the  right  of  property  preserved  by  the  constitu- 
tion is  the  right,  not  only  to  possess  and  enjoy 
it,  but  also  to  acquire  it  in  any  lawful  mode,  or 
by  following  any  lawful  industrial  pursuit  which 
the  citizen,  in  the  exercise  of  the  liberty  guaran- 
teed, may  choose  to  adopt.  Labor  is  the  primary 
foundation  of  all  wealth.  The  property  which 
each  one  has  in  his  own  labor  is  the  common 
heritage.  And,  as  an  incident  to  the  right  to 
acquire  other  property,  the  liberty  to  enter  into 
contracts  by  which  labor  may  be  employed  in 
such  way  as  the  laborer  shall  deem  most  bene- 
ficial, and  of  others  to  employ  such  labor,  is 
necessarily  included  in  the  constitutional  guar- 
anty. .  .  .  It  is  undoubtedly  true  that  the 
people  in  their  representative  capacity  may,  by 
general  law,  render  that  unlawful,  in  many  cases, 
which  had  hitherto  been  lawful.  But  laws  de- 
priving particular  persons,  or  classes  of  persons, 
of  rights  enjoyed  by  the  community  at  large,  to 
be  valid,  must  be  based  upon  some  existing  dis- 
tinction, or  reason,  not  applicable  to  others,  not 
included  within  its  provisions.     .     . 

"  The  restriction  of  the  right  to  contract  affects 
not  only  the  corporation,  and  restricts  its  right  to 
contract,  but  that  of  the  employee  as  well.  .  .  . 
An  illustration  of  the  manner  in  which  it  affects 
the  employee,  out  of  many  that  might  be  given, 
may  be  found  in  the  conditions  arising  from  the 
late   unsettled  financial   affairs  of  the  country. 


00  HANDBOOK    TO   THE   LABOR   LAW 

It  is  a  matter  of  common  knoAvleclge  tliat  a  large 
number  of  mannfactorics  were  shut  tlown  because 
of  the  stringency  iu  the  niouey  market.  Em- 
ployers of  labor  were  unable  to  continue  pro- 
duction for  the  reason  that  no  sale  could  be 
found  for  the  product.  It  was  suggested  in  the 
interest  of  the  employers,  as  well  as  in  the  pub- 
lic interest,  that  employees  consent  to  accept 
only  so  much  of  their  wages  as  was  actually 
necessary  to  their  sustenance,  reserving  pay- 
ment of  the  balance  until  business  should  revive, 
and  thus  enable  the  factories  or  workshops  to 
be  open,  and  operated  with  less  present  ex- 
penditures of  money.  Public  economists  and 
leaders  in  the  interest  of  labor  suggested  and 
advised  this  course.  In  this  state,  and  under 
this  law,  no  such  contract  could  be  made.  The 
employee  who  sought  to  work  for  one  of  the 
corporations  enumerated  in  the  act  would  find 
himself  incapable  of  contracting  as  all  other 
laborers  in  the  state  might  do.  The  corpora- 
tions would  be  prohibited  entering  into  such  a 
contract,  and,  if  they  did  so,  the  contract  would 
be  voidable  at  the  will  of  the  employee,  and  the 
employer  subject  to  a  penalty  for  making  it. 
The  employee  would,  therefore,  be  restricted 
from  making  such  a  contract  as  would  insure  to 
him  supi3ort  during  the  unsettled  condition  of 
affairs,  and  the  residue  of  his  wages  when  the 
product  of  his  labor  could  be  sold.     They  would, 


OF  THE   UNITED   STATES  97 

by  the  act,  be  practically  under  guarcliausliip ; 
their  contracts  voidable,  as  if  they  Avere  minors  ; 
their  right  to  freely  contract  for  and  to  receive 
the  benefit  of  their  labor  as  others  might  do 
denied  them." 

The  substance  of  this  case  appears  to  be, 
therefore,  that  the  act  was  void  because  it  inter- 
fered with  the  freedom  of  contract,  both  of  em- 
ployer and  employee,  impliedly  guaranteed  by 
the  Illinois  constitution  under  the  clause  iden- 
tical with  the  Fourteenth  Amendment ;  and  that 
it  could  not  be  upheld  on  the  ground  that  it 
amended  the  charter  of  corporations,  for  the 
reason  that  the  Illinois  constitution  also  re- 
quired that  such  charter  should  not  be  amended 
by  special  laws,  and  that  this  was  such  a  special 
law,  which  did  not  carry  with  it  its  reason  on  its 
face.  We  are,  therefore,  met  with  a  dilemma. 
If  a  general  weekly  payment  law  is  proposed, 
applying  to  all  persons  and  corporations,  it  is 
an  interference  with  general  liberty  of  contract, 
and  can  hardly  be  sustained  under  the  police 
power,  because  to  prohibit  everybody  from  pay- 
ing wages  or  salaries  monthly  or  quarterly  can 
hardly  be  said  to  be  reasonable  on  its  face  ;  and 
on  the  other  hand,  if  it  apply  to  special  classes, 
or  even  special  corporations,  it  may  be  hold  un- 
constitutional as  class  legislation.  Such  laws 
are  probably  valid  only  as  to  corporations,  in 
states  which  have  a  provision  that  their  charters 
7 


98  HANDBOOK   TO   THE   LABOR   LAW 

may  be  amended,  except  in  those  states  which, 
like  Illinois,  provide  that  it  shall  only  be  done 
by  general  law.  In  those  states,  weekly  pay- 
ment laws  to  be  valid  would  have  to  apply  gen- 
erally to  all  corporations  ;  and  as  to  individuals, 
or  private  employers,  such  laws  would  to-day 
be  probably  held  unconstitutional  in  all  states 
with  the  exception  of  Massachusetts.  They 
therefore  fall  naturally  within  those  reforms 
which  should  be  attempted  only  through  the 
trades  -  unions  or  otherwise  by  voluntary  con- 
tract. 

§  22.  Notice  of  Discharge. — By  the  usual  cus- 
tom, when  an  employee,  or  laborer,  or  servant  is 
discharged  without  cause,  and  in  some  cases, 
where  the  employee,  etc.,  leaves  without  cause, 
the  Employer  in  the  one  case,  the  employee  in 
the  other,  is  entitled  at  most  to  a  notice  equal  to 
the  term  of  payment  of  wages  ;  and  inferentially 
the  statutes  referred  to  in  the  last  section  pre- 
scribing such  terms  would  prescribe  a  like  no- 
tice. In  the  absence  of  such  custom,  no  notice 
is  necessary  on  either  side. 

But  this  usual  law  is  being  rapidly  modified 
by  statutes  in  the  interest  of  the  employee  ;  and 
even  express  contracts  requiring  notice  on  either 
side  or  both  are  being  forbidden  or  regulated. 
The  usual  form  of  such  statutes  is  that  "  where 
a  contract  provides,  under  penalty  of  forfeiture 


OF   THE   UNITED   STATES  99 

of  wages  or  of  some  deposit  or  money  fine  by 
the  employee  that  he  shall  give  a  notice  of  in- 
tention to  leave  the  employer,  the  employer  shall 
be  liable  to  payment  of  a  like  forfeiture  if  he  dis- 
charge without  similar  notice  an  employee  ex- 
cept  for  incapacity  or  misconduct,  unless  in  case  of 
a  general  suspension  of  labor  in  his  shop  or  fac- 
tory ;  ^  and  by  an  act  of  Massachusetts,  passed  / 
this  year,  the  italicised  exception  has  been  ^ 
stricken  out  of  the  law.^  So  in  Louisiana,  there 
is  a  statute  prohibiting  steamboat  employees  un- 
der a  penalty  from  leaving  without  notice ;  and 
in  Connecticut  it  is  made  a  penal  offence  to  with- 
hold wages  because  of  any  contract  express  or 
implied  to  give  such  notice.^  The  constitution- 
ality of  such  laws  is  perhaps  doubtful.  So,  in 
Texas,  the  law  is  probably  unconstitutional  which 
declares  that  "  All  persons  in  the  employment  of 
any  railway  company  shall  be  entitled  to  receive 
thirty  days'  notice  from  said  company  before 
their  wages,ea»  be  reduced  by  said  company;  "  "* 
while  the  Maine  statute,  that  "  Any  person  or 
corporation  may  contract  with  employees  to  give 
one  week's  notice  of  intention  on  such  employees' 

'  Mass.,  1894,  508,  1 ;  R.  I,,  1886,  571 ;  N.  J.  Sup.,  p.  772, 
§  14,  1895,  142;  Pa.,  1887,  122. 

2  Mass.,  1895,  129. 

3  La.  R.  L.,  945 ;  Ct.,  1748.     See  §  62. 

*  San  Antonio  Ry.  Co.  v.   Wilson,  19  S.  W.,  913.     See 
Texas  Laws,  1887,  30. 


.//I/. 


100         HANDBOOK   TO   THE   LABOR   LAW 

part  t(>  quit  employment,  under  penalty  of  for- 
feiture of  one  week's  wagjes  ;  but  in  such  case 
the  employer  shall  be  required  to  give  a  like  no- 
tice, or  shall  pay  such  employee  discharged  a 
sum  equal  to  one  week's  wages,  except  when  the 
discharge  or  leaving  of  the  employee  is  for  a  rea- 
sonable cause  "  (Me.,  1887,  139,  4),  if  there  be 
such  a  constitutional  principle  as  liberty  of  con- 
tract, certainly  infringes  it ;  unless  the  contract 
can  be  considered  such  a  fraud  upon  the  em- 
ployee as  to  come  under  the  police  power  (§  4). 

There  is  uo  doubt,  in  the  absence  of  such  stat- 
ute, of  the  legality  of  contracts  providing  against 
sudden  abandonment  of  work  without  notice ; 
and  such  contracts  express  or  implied  have  been 
universally  sustained,  both  as  to  a  fixed  penalty^ 
and  the  withholding  of  any  or  all  wages.^  La- 
borers desire  the  law  altered  so  as  to  facilitate 
sudden  strikes  ;  but  the  true  path  of  improve- 
ment, as  well  as  the  tendency  of  the  statutes, 
would  seem  rather  to  be  the  other  way.  Just  as 
indeterminate  relation  is  the  essence  of  slavery, 
so  a  definite  contract  is  the  relation  of  freedom ; 
and  if  employees  are  to  go  on  raising  their  posi- 
tion, it  must  be  done  through  contract,  by  bar- 
gaining on  both  sides.     Such  bargaining  may  be 


6  Walls  V.  Coleman,  34  N.  Y.  State,  281. 
^  Preston  v.  Am.  Linen  Co.,   119  Mass.,  400;   Harmon  v. 
Salmon  Falls  Co.,  35  Me.,  447. 


OF  THE   UNITED   STATES  101 

collective;  that  is,  it  may  be  enforced  by  the 
mass  of  employees,  or  by  trades-unions,  in  the 
interest  of  any  one  employee  ;  but  to  make  such 
bargaining  effectual,  both  sides  must  be  respon- 
sible. The  necessity  of  preventing  an  arbitrary 
and  sudden  cessation  of  the  employment  con- 
tract on  the  part  of  the  employee  has  already 
impressed  the  public  mind,  and  statutes  are  be- 
ing passed,  at  least  in  the  case  of  railroads  and 
other  employments  necessary  to  the  public  safety 
and  convenience,  which  prohibit  employees  from 
leaving  without  notice  at  inopportune  times. 
Such  statutes  will  be  found  later  collected  under 
§  62,  and  the  matter  will  be  further  discussed  in 
the  case  of  strikes.  But  the  withholding  of 
wages  for  a  reasonable  time  as  a  guaranty  for 
the  employee's  compliance  with  a  contract  requir- 
ing reasonable  notice,  such  as  one  week,  seems  to 
be  the  actual  and  proper  method  by  which  the 
employer  can  protect  himself,  and  the  public  as 
well,  against  the  injury  caused  by  sudden  breach 
or  rescission  of  the  contract  on  the  part  of  all  his 
employees  simultaneously. 

§  23.  Money  of  Wage-Payments. — The  Eng- 
lish anti-truck  act,  passed  in  1831,  has  been 
copied  in  many  of  our  states  in  laws  providing 
generally  that  laborers  may  be  paid  only  in 
money,  not  in  goods  or  orders,  even  orders  for 
the  payment  of  money.    But  in  every  state,  save 


102         HANDBOOK    TO  THE   LABOR  LAW 

Imliaua,  where  the  law  has  been  questioned,  the 
coiirts  have  held  it  nnconstitutional.  Thus,  in 
many  states  the  law  is  that  all  employers  of  labor 
may  pay  only  in  lawful  money,  and  not  in  goods 
or  orders  upon  company  stores,  or  any  other 
stores,  nor  may  (except  in  New  Mexico)  he  set- 
off money  so  due  for  goods  against  money  due 
for  wages,  even  by  voluntary  contract  of  the 
laborer.^  In  others  the  statute  is  the  same, 
but  it  applies  only  to  corporation  employers.^ 
In  some  the  law  applies  only  to  certain  industries, 
such  as  mining ;  ^  in  Kansas  it  does  not  apply 
to  farmers'  help  ;  and  in  Marjdand  its  operation 
is  made  local  to  certain  counties.  In  Kansas  and 
Ohio  the  emj)loyer  may  give  orders  on  stores 
"  in  which  he  is  not  interested,"  but  in  Kansas 
only  "  at  the  solicitation  of  the  employee."  The 
employer  offending  is  usually  made  guilty  of  a 
misdemeanor,^  or  liable  to  the  employee  in  dam- 


'N.  J.  Sup.,  p.  771,  §  7;  Pa.,  1891,  96;  Ind.,  7059, 
7066;  O.  R.  S.,  7015;  111.,  1891,  p.  212,  and  W.  Va.,  1887, 
31,  3  (law  annulled  as  unconstitutional)  ;  Wash.,  2531 ;  S.  C, 
2086;  N.  M.,  1893,26. 

-N.  Y.,  1895,  791,  2;  O.,  1890,  p.  78  (annulled  as  un- 
constitutional) ;  Md.  Local  Laws,  1880,  273;  Ky.  Const.,  244 
(as  to  general  labor) . 

^Thus,  to  mining  employees  only  (lo.,  1888,  55;  Ind., 
Ky.  Const.,  244;  1892,  35),  or  manufacturing  companies 
(Ind.,  Ky.),  or  to  various  specified  industries  (N.  J.). 

*  Pa.,  Ind.  R.  S.,  7063;  0.,  7015;  Kan.,  2441;  Md.,  Va., 
Wash.,  2532. 


OF   THE    UNITED    STATES  103 

ages,  or  for  a  penalty ;  ^  and  contracts  to  the  con- 
trary are  forbidden.**  • 

And  in  other  states  the  money  payment  must 
either  be  cash  or  orders  in  lawful  money,  pay- 
able at  a  limited  period,^  or  at  sight  ^  (and  com- 
pare also  §  22).  But  in  several  the  statute  ex- 
pressly provides  that  checks,  notes,  or  orders  for 
money  may  be  given,  payable  at  any  time, 
though  in  Ohio  and  South  Carolina  they  must 
be  checks  on  a  bank.^  Bank  bills  may,  however, 
be  used,  though  not  legal  tender,  with  the  em- 
ployee's consent. '° 

In  Louisiana  there  is  a  new  law,  prohibiting 
the  issue  of  checks  or  tickets  redeemable  in 
goods  alone  by  any  person,  firm,  or  corporation  ; 
and  such  checks,  etc.,  must  be  redeemed  in 
money."  And  a  new  statute  in  Missouri  makes 
it  a  misdemeanor  for  any  person  or  corporation 
to  pay  wages  in  orders,  etc.,  not  redeemable  in 
money  at  their  face  value,  and  not  to  redeem  the 
same  at  any  time   during  business  hom-s  when 

'Ind.  R.  S.,  70G2;  Wash.,  2533. 

6Md.  Loc.  L.,  Alleghany  Co.,  §  185;  Ind.  R.  S.,  7071. 

•N.  J.  Sup.,  p.  771,  §  4;  Ind.,  7066;  Va.,  1887,  391;  W. 
Va.  Code,  p.  1003,  §  3;  Tenn.,  1887,  209.  It  must  be  at  a 
fixed  time,  and  with  eight  per  cent,  interest.     Ind.,  7060. 

»N.  J.,  ib.;  Kan.  G.  S.,  2441;  O.,  7015;  Wash. 

9  Ind.,  ih.;  S.  C,  2086;  0.,  1890,  p.  78  (annulled  as  un- 
constitutional) . 

'"Md.  Local  Laws,  1880,  273;  Alleghany  County,  §  187. 

"La.,  1894,  71. 


104         HANDBOOK    TO   THE   LABOU   LAW 

prcscntei'l,'-  the  class  legislation  principle  being 
thus  avoided,  as  the  old  law  was  declared  im- 
constitutional  on  that  ground  (see  below). '^ 

Although  in  five  states  this  statute  has  been 
annulled  as  unconstitutional  (see  below)  and  the 
decisions  of  other  states  in  the  case  of  weekly 
payment  laws  '^  would  seem  to  make  it  likely 
that  the  courts  of  those  states  would  also  hold 
this  law  unconstitutional,  it  may  fairly  be  ques- 
tioned whether  such  laws,  the  reasonableness, 
even  the  necessity,  of  which  have  been  proved  by 
more  than  a  generation  of  actual  trial  in  England, 
do  not  fairly  fall  w'ithin  the  province  of  the  police 
regulation  of  government.  The  case  seems  much 
stronger  than  that  of  weekly  payments,  discussed 
in  §  21 ;  for  by  process  of  compelling  the  em- 
ployees to  trade  at  companies'  stores  and  accept 
their  pay  in  credits,  and  giving  them  credit  at 
such  stores  in  advance,  it  is  easy  to  see  that 
they  may  be  kept  under  the  power  or  the  con- 

"Mo.,  1895,  p.  206. 

'^  See  §  21.  So  in  North  Carolina  no  person  or  corpora- 
tion may  issue  in  payment  for  labor  orders  or  tickets  not 
transferable,  or  in  any  form  that  would  render  them  void  by 
transfer  from  the  person  to  whom  issued,  but  all  such  tickets, 
etc.,  shall  be  paid  to  the  person  holding  the  same  their  face 
value,  provided  that  this  act  only  applies  in  certain  counties. 
N.  C,  1889,  280. 

In  Wisconsin  lumber  and  building  corporations  must  give 
employees  written  evidence  of  indebtedness  when  the  payment 
of  their  wages  is  deferred.     Wis.,  1891,  430. 


OF  THE   UNITED   STATES  105 

trol  of  the  employer,  unless,  indeed,  they  are 
willing  to  leave  both  the  occupation  and  the 
neighborhood  entirely,  which  in  most  cases  they 
cannot  do ;  for  these  laws  apply  specially  to 
laborers  who  are  generally  ignorant,  notably 
miners,  who  are  frequently  newly  arrived  Hun- 
garians and  Poles,  without  education,  and  em- 
ployed necessarily  in  places  remote  from  towns, 
where  there  may  be  no  other  source  of  supply 
than  company  stores,  and  no  other  easy  market 
for  their  labor.  The  reason  of  such  legislation 
as  to  such  classes  would  seem  to  be  justified  on 
its  face.     (Compare  §§  4,  11.) 

Nevertheless,  wherever  these  statutes  have 
been  questioned,  the  courts  have,  except  in  In- 
diana, held  them  unconstitutional ;  these  states 
being  Pennsylvania,  Ohio,  West  Virginia,  Mis- 
souri, and  Illinois.  The  Pennsylvania  act  '*  pro- 
vided that  all  persons  and  companies  engaged 
in  mining  of  any  kind,  or  manufacturing,  should 
pay  their  employees  weekly  in  cash,  and  not 
in  goods  or  otherwise.  The  court  simply  said 
that  the  first  four  sections  of  the  act  were  ut- 
terly unconstitutional  and  void,  "  inasmuch  as 
by  them  an  attempt  has  been  made  by  the 
legislature  to  do  what,  in  this  country,  cannot 
be  done ;  that  is,  prevent  persons  who  are  sui 
juris   from    making    their  own    contracts.     The 

'^Pa.  Laws,  1881,  .June  29,  Dig.,  Ed.  1885,  p.  1010. 


106        HANDBOOK   TO   THE  LABOR   LAW 

act  is  an  infringement  alike  of  the  right  of 
the  employer  and  the  employee ;  more  than 
this,  it  is  an  insulting  attempt  to  put  the  laborer 
under  a  legislative  tutelage,  Avhich  is  not  only 
degrading  to  his  manhood,  but  subversive  of  his 
rights  as  a  citizen  of  the  United  States.  He 
may  sell  his  labor  for  what  he  thinks  best, 
whether  money  or  goods,  just  as  his  employer 
may  sell  his  iron  or  coal,  and  any  and  every  law 
that  proposes  to  prevent  him  from  so  doing  is 
an  infringement  of  his  constitutional  privileges, 
and  consequently  vicious  and  void."  " 

In  the  next  cases,  arising  in  West  Virginia, 
the  statute  prohibited  persons  engaged  in  min- 
ing or  manufacturing  fropa  issuing  orders  in  pay- 
ment of  labor,  except  such  as  could  be  payable 
in  money,  and  from  selling  to  their  employees 
at  a  gi'eater  percentage  of  profit  than  to  others, 
and  made  violations  of  such  jDrovisions  a  misde- 
meanor. The  court  here  seems  to  put  the  ob- 
jection more  particularly  on  the  ground  of  class 
legislation,  but  said :  "  The  right  to  use,  buy, 
and  sell  property,  and  contract  in  respect  there- 
to, including  contracts  for  labor,  which  is,  as  we 
have  seen,  property,  is  protected  by  the  consti- 
tution." '• 

The  Illinois  statute  provided  that  it  should  be 

'*  Godcharles  v.  Wigeman,  113  Pa.,  p.  437. 
'« State  V.  Goodwill,  State  v.  Fire  Creek  Coal  Co.,  33  W. 
Va.,  179,  188;  10  S.  E.,  285. 


OF   THE   UNITED   STATES  107 

unlawful  for  any  person  or  corporation  engaged 
in  mining  or  manufacturing  to  keep  a  truck 
store,  or  be  interested  therein,  and  was  held  un- 
constitutional for  the  same  reasons  as  in  West 
Virginia,  and  the  court "  expressly  dissented 
from  Hancock  v.  Yadeu,"  which  case  sustained 
the  statute  of  Indiana  requiring  miners  to  be 
paid  in  lawful  money,  and  not  in  goods  and  mer- 
chandise, and  forbidding  the  making  of  contracts 
to  be  so  paid  otherwise  than  in  lawful  money. 
This  case,  however,  was  put  largely  on  the  gi'ound 
that  the  standard  money  of  the  government  must 
be  maintained,  and  that  such  contracts  would 
open  the  door  to  the  legality  of  contracts  for 
payment  in  something  else  than  lawful  money, 
such  as  gold  coin.  This  reason  is  certainly  fal- 
lacious, and  the  whole  case  may  be  considered 
of  doubtful  authority.  And  the  weight  of  au- 
thorities is  further  sustained  in  the  case  of  State 
V.  Loomis,'"  decided  in  the  Supreme  Court  of 
Missouri  in  1893,  upon  the  statute,  R.  S.,  §  7058, 
expressly  affirming  Frorer  v.  The  People,  and 
differing  from  Hancock  v.  Yaden ;  and  also,  in 
1894,  by  a  case  in  Ohio.  The  Missouii  statute, 
like  the  Illinois  statute,  refen'ed  to  corporations 
engaged  in  manufacturing  and  mining,  and  for- 

>'  Frorer  v.  People,  31  N.  E.,  395. 
"  121  Ind.,  366. 
'»  22  S.  W.,  350. 


108         HANDBOOK    TO    TIIK    LABOR    LAW 

bade  them  to  issue  any  order  iu  payment  of 
wages  payable  otherwise  than  in  lawful  money, 
or  redeemable  in  goods  except  at  the  option  of 
the  holder  at  the  company's  store  ;  the  court  re- 
fusing to  recognize  any  special  state  of  oppres- 
sion peculiar  to  mining  and  manufacturing  labor. 
But  Barclay,  J.,  filed  a  dissenting  opinion,  re- 
ferring particularly  to  the  English  precedents, 
and  basing  the  statute  expressly  on  the  ordinary 
police  power  of  the  legislature  to  interfere  on 
behalf  of  a  weak  or  ignorant  class  when  the 
contracts  in  common  use  led  to  fraud.  The 
Ohio  case  apparently  concerned  only  the  law 
of  1890,  p.  78 ;  but  its  reasoning  would  ap- 
parently render  R,  S.,  §  7015,  unconstitutional 
as  well,* 

We  must  therefore  conclude  that,  except,  per- 
haps, in  Massachusetts,  these  anti-truck  laws 
are  likely  to  be  held  unconstitutional.  Such 
statutes  may,  however,  be  valid  when  they  are 
limited  only  to  corporation  employers.  (See 
discussion  of  this  distinction  in  §  21.)  The  legis- 
lature of  Pennsylvania,  since  the  decision  in 
Godcharles  v.  Wigeman,  has  passed  a  new  law 
which  applies  generally  to  all  persons  or  cor- 
porations, and  has  not  yet  been  passed  on  by 
the  coui-ts,     (See  above,  p,  102,  note  1.) 


^  Case  not  yet  reported.     See  Wheeling  Bridge  Ry,  Co.  r. 
Gilmore,  8  O.  C.  C,  669. 


OF   THE    UNITED   STATES  109 

§  24.  Company  Stores,  etc — In  line  with  the 
statutes  referred  to  in  the  last  section,  the  run- 
ning by  companies  or  individual  employers  of 
general  supply  stores  is  in  some  states  forbidden. 
Thus,  in  some,  "  it  is  unlawful  for  any  manufact- 
urer, firm  or  corporation,  who  own  or  control  a 
store  for  the  sale  of  general  store  goods  or  mer- 
chandise in  connection  with  their  manufactur- 
ing or  other  business,  to  attempt  to  control  their 
employees  or  laborers  in  the  purchase  of  store 
goods  in  supplies  at  such  stores  by  Avithholding 
the  payment  of  wages  longer  than  the  usual 
time."  '  In  other  states  the  company  may  have 
such  stores,  but  it  is  made  a  penal  offence  to 
compel  or  coerce  an  employee  to  deal  with  them 
or  with  any  particular  person  or  corporation.'^ 
In  other  states  the  prohibition  is  only  against 
selling  to  employees  at  a  higher  profit  than  to 
others,  or  than  to  cash  customers,  or  at  higher 
prices  than  the  market  value  ;  ^  and  such  debts 
are  made  not  collectible,  or  (as  in  Ohio)  the  em- 
ployee may  recover  back  double  such  excess  in 


'  N.  J.  Sup.,  p.  772,  §  12;  Tonn.,  1887,  155.  In  Maryland 
the  statute  applies  to  railways  and  mines  only  :  Md.,  23,  202; 
in  Pennsylvania  only  to  mining  and  manufacturing  corpora- 
tions :  Pa.  Dig.,  p.  1385. 

«  O.,  7016;  Ind.  R.  S.,  7072,  7073,  7074;  lo.,  1888,  .55,  2; 
Kan.  G.  S.,  2442  ;^Mo.,  7000;  Wash.,  1888,  128,  2. 

3  O.,  701f5;  Va.,*  1887,  391,  4;  W.  Va.  Code,  p.  1003,  §  4 
(annulled  as  unconstitutional,  see  §  23) ;  Ind.  R.  S.,  7061,  7067. 


110        HANDBOOK   TO   THE   LABOR   LAW 

price.''  But  in  Illinois  and  West  Virginia  the 
several  cases  discussed  in  §  23  held  this  stat- 
ute, forbidding  certain  corporations  to  maintain 
company  stores,  as  invalid  as  the  other,  which 
forbade  the  payment  of  wages  in  goods.  Proba- 
bly, therefore,  such  statutes  are  unconstitutional 
everywhere  except  perhaps  in  some  states  where 
they  apply  generally  to  all  classes  of  corpora- 
tions, and  not  to  individuals.  See  cases  cited 
in  §  23. 

§  25.  Payment  of  Piece  Work ;  Screen  Laws, 
etc. — Several  of  the  states  have  passed  statutes 
providing  generally  for  the  fair  weighing,  etc.,  of 
coal  at  mines,'  or  that  the  coal  must  be  weighed 
and  credited  to  miners  in  determining  the 
amount  of  wages  due  them  before  it  is  screened.^ 
The  latter  statute,  however,  has  been  in  Illinois 
declared  unconstitutional,  and  the  one  in  "West 
Virginia  will  probably  be  so  held  under  the  de- 
cision in  State  v.  Goodwill ;  ^  while  the  Colo- 
rado Supreme  Court  has  recently  rendered  the 


*  O.,  ib. 

'  Pa.  Dig.,  pp.  1341,  1312;  Ind.,  1891,  49;  W.  Va.,  1891, 
82;  lo.,  1888,  53;  Ky.,  1885,  6,  1251;  Tenn.,  1887,  20G; 
Ala.,  1895,  140;  Mo.,  7055. 

-Ind.,  t6.  5;  111.,  1887,  p.  235;  1891,  p.  170;  Ic,  1888, 
54;  W.  Va.,  1891,  82;  Mo.,  7054;  Wash.,  1891,  161;  N.  M., 
1889,  126. 

=*  33  W.  Va.,  179,  discussed  in  §  23. 


OF   THE   UNITED   STATES  111 

legislature  an  opinion  to  the  same  effect.^  There 
have  been  two  Illinois  decisions  to  this  effect. 
The  first  in  Millett  v.  The  People,^  applying  to 
a  statute  passed  in  1883  and  amended  in  1885, 
declared  void  as  unconstitutional  such  part  of 
the  then  statute  as  prohibited  all  contracts  for 
the  mining  of  coal  in  which  the  weighing  of 
the  coal  as  provided  for  in  the  act  should  be 
dispensed  with ;  and  also  that  the  legislature 
had  not  the  power  to  require  the  owners  of 
coal  mines  to  furnish  scales  and  employ  a  per- 
son to  use  them  and  keep  books  of  entry  and 
weights  for  the  benefit  or  information  of  the 
public  without  first  making  compensation  to 
the  owners,  that  being  tantamount  to  an  ap- 
propriation to  pubHc  use  of  private  property. 
The  court  held  that  these  sections  could  not 
be  maintained  under  the  police  power,  as  they 
had  no  tendency  to  insure  the  personal  safety 
of  a  minor  or  to  protect  his  property  or  the 
property  of  others,  and  that  the  legislature 
could  not  compel  the  owners  of  coal  mines  in 
particular  to  make  contracts  for  labor  for  wages 
to  be  determined  by  weight  of  output,  and  not 
otherwise. 

And   in   the   case   of   Ramsey    v.    The   Peo- 
ple,*' the  act  of  1891  was  in  question  which  pro- 


*  Rt  House  Bill,  39  Pac,  431.  '  117  HI.,  294. 

«  142  111.,  380. 


112         HANDBOOK    TO   THE   LABOPw   LAW 

vided  that  where  the  owner  of  coal  mines  did 
contract  for  labor  to  be  paid  upon  the  basis  of 
the  quantity  of  coal  mined,  such  coal  must  be 
weighed  before  being  screened.  The  contracts 
of  the  plaintiff  made  with  his  miners  were  to  pay 
them  for  each  ton  of  screened  coal,  and  it  was 
held  that  such  contracts  were  legal,  and  the 
statute  forbidding  them  unconstitutional  on  the 
ground  that  those  engaged  in  coal  mining  could 
not  be  singled  out  and  subjected  to  restriction 
of  their  power  to  contract  as  to  wages,  while 
those  engaged  in  all  other  classes  of  business 
are  left  free  to  contract  as  they  see  fit. 

The  same  remarks  apply  to  these  statutes  as 
to  the  anti-truck  acts  discussed  in  §  23.  If  it 
be  true  that  coal  miners  are  as  a  class  in  danger 
of  being  fraudulently  imposed  upon  by  their 
employers  as  to  the  amount  due  them  for  wages 
when  paid  by  the  ton,  owing  to  the  peculiar 
nature  of  the  business,  it  would  seem  that  their 
contracts  for  wages  might  reasonably  be  regu- 
lated under  the  police  power  in  order  to  prevent 
a  general  fraud ;  but  as  the  decisions  now  stand, 
such  statutes  are  unconstitutional. 

§  26.  Labor  upon  Shares,  Croppers,  Etc. —  In 
one  or  two  southern  states  there  are  special 
provisions  as  to  agricultural  labor  in  the  case 
of  farming  upon  shares  and  hke  contracts,  by 
which  a  contract  between  the  land  owner  and 


OF  THE   UNITED   STATES  113 

the  laborer,  duly  put  in  writing  and  Avitnessed 
and  executed  before  a  trial  justice,  whose  duty 
it  shall  be  to  read  and  explain  the  same  to 
the  parties,  may  not  be  broken  by  either  party 
Tinder  penalty  of  misdemeanor.'  This  statute 
is  notable  as  making  the  breach  of  an  ordinary 
contract  a  criminal  offence,  and  if  such  statutes 
were  enacted  generally,  they  would  very  mate- 
rially change  the  law  of  strikes  and  boycotts. 
(Compare  sections  7,  8,  49,  55,  57.) 

§  27.  The  Exaction  of  Bonds  from  Employees. 
— In  New  Mexico,  "No  corporation,  company, 
firm,  or  individual,  shall  demand  as  a  condition 
precedent  to  giving  employment  to  any  person 
or  retaining  such  person  in  employment,  that 
such  employee  shall  procure  the  bond  or  guar- 
antee of  any  foreign  guarantee  company  as  an 
indemnity  to  such  employer  against  loss  by  the 
act  of  such  employee,  unless  such  guarantee 
company  shall  have  a  designated  agent  at  the 
county  seat  of  some  county  in  this  territory." 
(N.  M.,  1888-89,  30,  1.) 

The  example  of  such  legislation  has  not  been 
followed  in  other  states,  though  by  the  usual 
laws  no  foreign  insurance  or  guarantee  company 
can  be  admitted  to  do  business  in  any  state  un- 
til it  has  complied  with  certain  restrictions. 

'  S,  C,  2081-2084. 


114        HANDBOOK   TO   THE   LABOR   LAW 

§  28.  Charitable  Funds,  Relief  Societies,  EtCo 
— The  institution  l)y  large  railroad  corporations 
of  charitable  or  relief  funds  has  been  usual  in 
England,  and  it  has  met  with  general  approval 
in  this  country.  Many  such  funds  have  been 
established,  and  some  of  them,  as  in  the  case  of 
the  Pennsylvania  and  the  Chicago,  Burlington 
and  Quincy  Railroads,  now  amount  to  sums 
ranging  in  the  millions  of  dollars.  They  have 
generally  effected  an  economic  saving  and  have 
been  supposed  to  be  beneficial  to  the  employee 
as  insuring  him  against  accident  or  physical  in- 
capacity, and  to  the  employing  company  as  pro- 
tecting it  against  groundless  suits,  and  especially 
to  both  as  tending  to  more  cordial  and  perma- 
nent relations  between  the  company  and  its  em- 
ployees. Membership  in  such  societies,  or  par- 
ticipation in  such  funds,  undoubtedly  tends  to 
prevent  strikes,  to  discourage  the  employees 
from  forfeiting  their  rights  by  misconduct  or  by 
unreasonably  leaving  their  employment.  It  has 
been  common  in  the  constitution  of  such  relief 
societies  to  require  that  the  members  should 
enter  into  contract  not  to  sue  the  company  in 
the  coui'ts  for  injuries  occurring  in  the  course  of 
their  employment.  But  such  contracts  have 
lately  been  held  illegal,^  even  although  the  in- 

■  Miller  vs.  C.  B.  &  Q.  R.  R.,  65  F.  R.,  305;  C.  B.  &  Q. 
R.  R.,  V.  Wymore,  58  N.  W.,  1120.  Contra,  Leas  vs.  Peana. 
Co.,  37  N.  E.,  423. 


OF   THE   UNITED   STATES  115 

jured  employee  has  first  had  recourse  to  the 
relief  fund  and  been  paid  out  of  it  his  full  claim 
according  to  its  rules,  and  in  several  states 
recent  statutes  have  been  passed  forbidding  em- 
ployers to  require  of  any  person  seeking  em- 
ployment as  a  condition  or  preliminary  there- 
to, that  he  should  enter  into  any  contract 
whereby  they  shall  agree  to  contribute  to  any 
fund  for  charitable,  social,  or  financial  purposes  f 
or  forbidding  corporations  to  keep  back  wages 
on  pretence  of  relief  or  assistance  to  employees  ^ 
or  to  pay  for  wares,  tools,  etc.;  or  for  the  benefit 
of  or  as  a  contribution  to  relief  associations, 
etc.;"*  or  for  the  maintenance  by  raih'oads  of  any 
hospital,  reading-room,  librarj^  gymnasium  or 
restaurant.^  Compulsory  insurance  in  any  par- 
ticular company  is  forbidden  in  Michigan  by 
a  new  law  (1895,  209),  but  voluntary  agreements 
for  benefit  funds  are  allowed,  and  the  employer 
may  deduct  sums  due  for  such  from  the  em- 
ployee's wages. 

But  on  the  other  hand,  in  Massachusetts,  and 
possibly  other  states,  there  are  recent  statutes 
expressly  permitting  the  establishment  of  relief 

«  N.  J.,  1891,  212;  Mich.,  1893,  192. 
•''  N.  J.,  ib. 

•  Md.,  1890,  443.  (The  Maryland  statute  applies  to  rail- 
road corporations  only.)     Mich.,  ib.  2. 

*  Ind.,  2300.  (But  wages  may  be  kept  back  for  such  a 
purpose  under  a  written  contract.) 


no    HANDBOOK  TO  THE  LABOR  LAW 

societies  for  employees  of  railroads,^  street  rail- 
way compauies,'  and  steamboat  companies. 

§  29.  Company  Physicians.  —  In  Tennessee 
there  is  a  statute  making  it  unlawful  for  manu- 
facturers, firms,  or  companies  to  dictate  to  or  in 
any  manner  interfere  with  any  employee  or  la- 
borer in  his  right  to  select  his  own  physician, 
or  to  retain  or  •  withhold  any  portion  of  the 
wages  due  for  paying  a  "  company  doctor,"  etc. 
(Tenn.,  1889,  259.) 


•Mass.,  244,  1;   1886,  195. 
'  Mass.,  1890,  191. 


I 


OF  THE   UNITED   STATES  117 


CHAPTER  III 

POLITICAL   PROTECTION  AND  LEGAL   PRIVILEGES  OF 
LABORERS 

§  30.  General  Political  Rights.— By  the  Con- 
stitution laborers  in  all  states  must  have  the 
same  political  rights  and  liberties  as  any  other 
class  of  citizens ;  and  no  express  statutes  are 
needed  to  secure  this.  A  few  statutes  upon  the 
subject  have,  however,  been  passed.  Thus,  in 
Minnesota  and  Wyoming,  where  "  Employers 
are  forbidden  to  require  as  a  condition  of  em- 
ployment the  surrender  of  any  right  of  citizen- 
ship or  to  discharge  candidates  because  of  their 
nomination  for  an  election,  or  to  interfere  in  the 
matter  of  such  nomination." ' 

§  31.  Voting — And  in  nearly  all  the  states  it 
is  made  penal  or  criminal  for  any  person,  by 
threatening  to  discharge  an  employee  or  to  re- 
duce his  wages,  or  by  promising  to  give  him 
higher  wages,  or  otherwise,  to  attempt  to  influ- 
ence a  voter  to  give  or  withhold  his  vote ; '  but 

1  Wy.,  1893,  9;  Minn.,  1893,  25. 

'Mass.,  1894,  508,  5;  Ct.,  276;  N.  .!.,  1890,  231,  71;  Pa. 
Dig.,  p.  480,  §52;  Del.,  1881,  329;  O.,  7065;  Ind.,  2341; 


118         HANDBOOK   TO   THE   LABOR   LAAV 

in  Tennessee  this  statute  applies  to  corporation 
employers  only.  And  in  New  York  and  Montana 
political  "  pay  envelopes  "  or  placards  are  for- 
bidden to  be  used  by  employers."^  In  a  few- 
states  a  period  of  two  lionrs,  or  reasonable  time 
to  vote,  is  required  to  be  given  employees  of 
manufacturing,  meclianical,  or  mercantile  estab- 


Mich.,  9382;  Wis.,  4548a;  W.  Va.,  5,  7;  N.  C,  2715; 
Tenn.,  1887,  208;  Mon.  P.  C,  108;  Wy.,  1890,  80,  174; 
S.  C,  2552;  La.  R.  L.,  902;  U.  S.,  R.  S.,  5507;  N.  M., 
1889,  135,  4.  But  in  some  states  this  statute  applies  only  to 
corporations  :  Tenn.,  W.  Va. 

*  "  It  shall  not  be  lawful  for  any  employer,  in  paying  his 
employees  the  salary  or  wages  due  them,  to  enclose  their  pay 
in  '  pay  envelopes '  upon  which  there  is  written  or  printed 
any  political  mottoes,  devices,  or  arguments  containing 
threats,  express  or  implied,  intended  or  calculated  to  influ- 
ence the  political  opinions  or  actions  of  such  emploj'ees. 
Nor  shall  it  be  lawful  for  any  employer,  within  ninety  days 
of  general  election,  to  put  up  or  otherwise  exhibit  in  his 
factory,  workshop,  or  other  establishment  or  place  where  his 
employees  may  be  working,  any  hand-bill  or  placard  contain- 
ing any  threat,  notice,  or  information  that  in  case  any  partic- 
ular ticket  or  candidate  shall  be  elected,  work  in  his  place  or 
establishment  will  cease,  in  whole  or  in  part,  or  his  establish- 
ment be  closed  up,  or  the  wages  of  his  workmen  be  reduced, 
or  other  threats  expressed  or  implied,  intended  or  calculated 
to  influence  the  political  opinions  or  actions  of  his  employees. 
This  section  shall  apply  to  corporations,  as  well  as  individ- 
uals, and  any  person  or  corporation  violating  the  provisions 
of  this  section  shall  be  deemed  giiilty  of  a  misdemeanor,  and 
any  corporation  violating  this  section  shall  forfeit  its  charter." 
(N.  Y.  P.  C,  41,  c  (1890,  94)  ;  Mon.  P.  C,  109.) 


OF   THE   UNITED   STATES  113 

lishments  upon  election  days ;  ^  and  in  Tennes- 
see absence  for  voting  is  declared  no  violation 
of  a  contract  for  personal  service ;  "  and  every 
contract  which  will,  or  is  designed  to,  keep  such 
voters  away  from  the  polls  shall  be  void."^  In 
many  states  election  day  is  made  a  legal  holi- 
day ;  ^  so,  in  New  Jersey,  eight  hours  is  made  a 
full  day's  work  upon  election  days.^ 

§  32.  Alien  Labor  and  Contracts — By  the  con- 
stitution of  California,  "No  corporation  now 
existing  or  hereafter  formed  under  the  laws  of 
this  state  shall,  after  the  adoption  of  this  con- 
stitution, employ,  directly  or  indirectly,  in  any 
capacity,  any  Chinese  or  Mongolian  .  .  ." 
(Cal.  Const.,  19,  2).  This  section,  and  sections 
178  and  179  of  the  Penal  Code,  which  were  en- 
acted to  give  it  effect,  were  adjudged  by  the 
Circuit  Court  of  the  United  States  to  be  in  con- 
flict with  the  treaty  of  the  United  States  with 
China,  and  to  be  therefore  void  (see  "  in  re 
Tiburcio  Parrot,  1  F.  R.,  481");  and  this  deci- 


"Mass.,  1894,  508,  4;  N.  Y.,  1892,  680,  113;  O.,  1890,  p. 
280;  Ind.,  2341. 

'Tenn.,  1039. 

'N.  Y.,  Pa.,  Wis.,  Md.,  Mo.,  Tex.,  Cal.,  Ore.,  Dak.,  Ida., 
Mon.,  S.  C,  Fla.,  Ariz.  '  But  qucere  as  to  whether  these 
statutes  apply  to  industrial  labor.  See  Stimson's  Am.  Stat. 
Law,  §§  4134,  4727. 

«N.  J.,  p.  368,  §177. 


120         HANDBOOK    TO   THE   LABOR    LAW 

sion  would  probably  also  annul  similar  laws 
in  Nevada  (Nev.,  4764-4766,  4948-4949.  See 
Note  6). 

This  is  the  only  attempt  that  has  been  made 
to  prohibit  by  statute  the  employment  of  aliens 
in  private  employments.  But  in  several  states  it 
is  forbidden  to  employ  Chinese '  or  aliens  ^  upon 
state,  municipal,  or  public  works  (in  California, 
Wyoming,  Idaho,  by  the  Constitution),  and  such 
work  can  be  given  only  to  United  States  citi- 
zens ;  ^  or  in  New  York,  as  to  stone-cutting  work, 
only  to  citizens  of  that  state,^  while  in  all  cases 
"  preference "  is  to  be  given  to  such  citizens. 
And  in  New  York  it  was  made  a  criminal  offence 
for  a  contractor  on  public  work  to  employ  an 
alien  ;  but  this  statute  has  been  declared  uncon- 
stitutional, besides  being  in  violation  of  our 
treaty  with  Italy.^ 

There  are  further  specific  provisions  in  Cali- 
fornia and  Nevada  restricting  the  immigration 
and  labor  rights  of  Chinese  and  Mongolians,  but 


'  Cal.  Const.,  19,  3;  Nev.,  4947;  Ida.,  1891,  p.  233.  Ex- 
cept, in  California  and  Idaho,  as  a  punishment  for  crime. 

='N.  Y.,  1874,  622;  111.,  1889,  p.  2;  Ida.  Const.,  13,  5; 
Wy.  Const.,  19,  1. 

»N.  Y.,  111.,  Ida. 

•N.  Y.,  1894,  277;  1889,  380,  2. 

'N.  Y.,  1870,  385,  §2;  1894,622;  People  f.  Warren,  34 
N.  Y.  Sup.,  942. 


OF  THE   UNITED   STATES  121 

they  are  probably  inconsistent  with  federal  law 
and  treaties.'' 

°  "  The  presence  of  foreigners  ineligible  to  become  citizens 
of  the  United  States  is  declared  to  be  dangerous  to  the  well- 
being  of  the  state,  and  the  legislature  shall  discourage  their 
immigration  by  all  the  means  within  its  power.  Asiatic  coolie- 
ism  is  a  form  of  human  slavery,  and  is  forever  prohibited  in 
this  state,  and  all  contracts  for  coolie  labor  shall  be  void. 
All  companies  or  corporations,  whether  formed  in  this  coun- 
try or  any  foreign  country,  for  the  importation  of  such  labor, 
shall  be  subject  to  such  penalties  as  the  legislature  may  pre- 
scribe. The  legislature  shall  delegate  all  necessary  power  to 
the  incorporated  cities  and  towns  of  this  state  for  the  removal 
of  Chinese  without  the  limits  of  such  cities  and  towns,  or  for 
their  location  within  prescribed  portions  of  those  limits,  and  it 
shall  also  provide  the  necessary  legislation  to  prohibit  the  in- 
troduction into  this  state  of  Chinese  after  the  adoption  of 
this  constitution.  This  section  shall  be  enforced  by  appro- 
priate legislation."     Cal.  Const.,  Art.  19,  §  4. 

"No  supplies  of  any  kind  or  character, '  for  the  benefit  of 
the  state,  or  to  be  paid  for  by  any  moneys  appropriated  or  to 
be  appropriated  by  the  state,'  manufactured  or  grown  in  this 
state,  which  are  in  whole  or  in  part  the  product  of  Mongolian 
labor,  shall  be  purchased  by  the  officials  for  the  state  having 
the  control  of  any  public  institution  under  the  control  of  the 
state,  or  of  any  county,  city  and  county,  city,  or  town  there- 
of."   Cal.  Pol.  Code,  §  3235. 

"Preamble. —  Whereas^  all  Chinese  who  come  to  this 
coast  arrive  here  under  a  contract  to  labor  for  a  term  of 
years,  and  are  bound  by  such  contract,  not  only  by  the  super- 
stitions of  their  peculiar  religions,  but  by  leaving  their  blood 
relations,  fathers,  mothers,  sisters,  brothers,  or  cousins,  as 
hostages  in  China  for  the  fulfilment  of  their  part  of  the  con- 
tract; and,  whereas,  such  slave  labor  and  involuntary  servi- 
tude is  opposed  to  the  genius  of  our  institutions,  opposed  to 
the  prevailing  spirit  of  the  age,  as  well  as  to  humanity  and 


122        HANDBOOK   TO   THE   LABOli   LAW 

Alien  Contract  Laios. — In  Indiana,  it  is  made 
unlawful  for  any  person  or  corporation  to  trans- 
port, or  assist,  or  pay  for  the  transportation  of 
aliens  into  the  state  under  contract,  express  or 


Christianity,  and  degrades  the  dignity  of  labor,  which  is  the 
foundation  of  ropnbliuan  institutions;  and,  whereas,  section 
17  of  Artick^  1  of  tiie  constitution  of  the  state  of  Nevada 
roads  as  follows :  Neither  slavery,  nor  involuntary  servitude, 
unless  for  the  punishment  of  crimes,  shall  ever  be  tolerated 
in  this  state ;  "  therefore, 

The  people  of  the  state  of  Nevada  ....  do  enact 
as  follows : 

The  immigration  to  this  state  of  all  slaves  and  other  people 
bound  by  contract  to  involuntary  servitude  for  a  term  of 
years,  is  hereby  prohibited. 

It  shall  be  unlawful  for  any  company,  person,  or  persons, 
to  collect  the  wages  or  compensation  for  the  labor  of  the  per- 
sons described  in  the  first  section  of  this  act. 

It  shall  be  unlawful  for  any  corporation,  company,  person, 
or  persons,  to  pay  to  any  owner,  or  agent  of  the  owner  of 
any  such  persons  mentioned  in  section  1  of  this  act,  any 
wages  or  compensation  for  the  labor  of  such  slaves,  or  per- 
sons so  bound  by  said  contract  to  involuntary  servitude. 

Any  violation  of  any  of  the  provisions  of  this  act  shall  be 
deemed  a  misdemeanor."     Nev.,  4764-4767. 

"  Hereafter  no  right  of  way  or  charter,  or  other  privileges 
for  the  construction  of  any  public  works  by  any  railroad  or 
other  corporation  or  association  shall  be  granted  to  such  cor- 
poration or  association,  except  upon  the  express  condition 
that  no  Mongolian  or  Chinese  shall  be  employed  on  or  about 
the  construction  of  such  work  in  any  capacity. 

Any  violation  of  the  conditions  of  this  act  shall  work  a 
forfeiture  of  all  rights,  privileges,  and  franchise  granted  to 
such  corporation  or  association.     Nev.,  4948-4949. 


OF  THE   UNITED   STATES  123 

implied,  to  labor,  and  such  contracts  are  void.''' 
But  compare  the  (U.  S.,  1885,  ch.  164)  federal 
law,  which  forbids  such  assistance  and  annuls 
such  contracts  in  toto,  and  hence  overrides  this 
and  similar  statutes  of  the  states  regulating  or 
allowing  such  contracts ;  as,  in  Wyoming,  not 
exceeding  six  months,  or,  in  Virginia,  two  years.^ 

§  33.  Special  Privileges  of  the  G.  A.  R — There 
are  in  many  states  recent  statutes  specially  giv- 
ing preference  of  work  to  members  of  the  G.  A. 
R.,  or  exempting  them  from  the  operation  of 
civil  service  laws,  or  giving  to  them  or  the  Sons 
of  Veterans  special  educational  or  eleemosynary 
privileges.  Thus,  in  many  states  discharged 
soldiers  or  sailors  are  to  be  'preferred  in  all  pub- 
lic works  by  or  in  behalf  of  the  state  or  munici- 
palities thereof,'  but  only  provided  they  possess 
the  other  requisite  qualifications  ;  or,  in  Massa- 
chusetts, if  they  have  passed  the  civil  service 
examination.  So,  the  widows  and  orphans  of 
deceased  soldiers  and  sailors  may  not  be  dis- 
charged.^ 

The  new  constitution  of  New  York  provides 
for  such  a  preference  ;  and  that  all  examinations 

'  Ind.  K.  S.,  7079,  7080. 

8  Va.  Code,  6,  44 ;  Wy.,  1075-1077. 

"Pa.,  1887,  132;  Ct.,  1889,  124;  N.  Y.,  1887,  464;  O., 
1888,  p.  149;  R.  S.,  8209-16;  Minn.,  8041;  Kan.,  5927, 
5928 ;  Dak.,  1887,  205 ;  Mass.,  895,  501.      «  Kan.,  5928. 


124         HANDBOOK    TO   TlIK    LAKOK    LAW 

shall  be  competitive  "so  far  as  practicable;" 
aud  uuder  it  the  act  of  1895,  chap.  344,  provid- 
ing that  competitive  examination  shall  not  be 
deemed  practicable  or  necessary  in  cases  Avhen 
the  pay  of  the  office  does  not  exceed  $4  per  day, 
has  been  held  constitutional  in  a  lower  court.^ 

§  34.  Attachment  of  Wages. — Laborers  are  gen- 
erally protected  by  laws  prohibiting  the  attach- 
ment, by  garnishment  or  trustee  process,  of 
debts  due  them  or  their  wives  and  children  for 
wages  or  personal  service.  In  some  states  such 
wage  debts  are  exempt  to  any  amount ; '  in  others 
the  amount  exempt  is  limited  to  $50  or  $100,^ 
or  to  one  month,  or  60  days'  wages.^    And  in  a 


3  Re  Keymer,  12;  Misc.  (N.  Y.),  615. 

'  Fa.  Dig.,  p.  836,  49;  Del.,  v.  15,  185;  Tex.  Const.,  16, 
28;  Ala.,  2512;  Ga.,  3554;  Fla.,  2008;  Okla.,  2846.  But 
at  a  rate  not  exceeding  §25  a  month  (Ala.),  .§100  (D.  C). 

5  Thus,  $20 :  Mass.,  183,  30 ;  $25  :  Minn.,  1889,  204  ; 
Mich.,  8032,  8096  ;  $30 :  Tenn.,  2931  ;  Col.,  1889,  p.  463  ; 
^50:  Ct.,  1231;  111.,  62,  14;  Ky.,  1894,  92;  Va.,  3652; 
Nev.,  3267  ;  $100  :  Md.,  9,  32  ;  Wy.,  2831.. 

''Thirty  days  or  one  month's  wages  only  are  exempt:  lo. 
463;  Ind.,  971;  Minn.,  Mo.,  5220;  Nev.;  Ky. ;  Cal.  C.  P. 
690  (7);  Ore.,  C.  P.,  313;  Col.;  Ida.,  C.  C.  P.,  4470 ;  Ga. 
Ariz.,  4,  97.  So  60  days'  wages  only ;  Neb.  C.  C.  P.,  531a 
Ark.,  3717  ;  D.  C.  (U.  S.),  1878,  321  ;  Dak.,  C.  C.  P.,  371 
S.  C,  C.  C.  P.,  317.  90  days:  lo.,  4299;  Kan.,  5012;  N 
M.,  1887,  37,  1.  One  half  the  debtor's  wages  only  are  ex 
empt   for  30  (Col.)  or  60  days  (Uta.)  preceding;  Col.,  1889 


OF  THE   UNITED    STATES  125 

few  of  these  states  an  exception  is  made  of 
claims  for  necessaries  furnished  the  debtor  or 
his  family.^ 

In  some  states  the  exemption  only  exists 
when  the  debtor  is  a  householder  having  a  fam- 
ily,^ or  is  head  of  a  family,*'  or  when  the  wages 
thus  exempted  are  necessary  for  the  support  of 
his  family.^ 

The  wages  of  the  debtor's  wife  and  children, 
or  family,  are  also  exempt  in  like  manner  re- 
spectively in  several  states.^ 

No  assignment  of  wages  is  valid  against  the 
employer  unless  he  has  actual  notice  thereof ;  ^ 
or  it  is  recorded  in  the  town  clerk's  office  (or 
register  of  deeds)  where  the  assignor  resides.'" 

The  constitutionality  of  such  statutes  ap- 
pears never  to  have  been  raised  ;  the  right  to 
attachment  is  not  a  common  law  but  a  statutory 
right ;  but  the  exempting  of  certain  debts  from 
attachment  appears  to  savor  somewhat  of  class 
legislation.  It  is  probably  justified  as  ordinary 
exemptions  are  justified  (see  §  35). 


p.  463;  Uta.,  3429.  Twenty  dollars  are  exempt  unless  the 
suit  is  for  necessaries ;  in  that  case  ten  dollars ;  Mass.,  183,30. 

*  Mass.,  Ky.,  Cal.,  Ga. 

'  Va.  »  D.  C,  Fla.,  111.,  Col.,  Mo. 

'  Cal.,  Col.,  Utah.,  Ida.,  Ariz.,  S.  C,  Dak.,  Kan.,  Wy.,  Ore. 

«  Mass.,  183,  29  ;  Ct.,  Vt.,  1075  ;  Mich.,  8096;  Minn.,  lo., 
4299  ;  N.  M. 

8  Me.,  1891,  73.       loMass.,  183,  37;  R.  I.,  1884,  458. 


126        HANDBOOK   TO   THE   LABOR   LAW 

In  Wyoiniug  there  is  a  new  statute  (1895,  47) 
making  it  unlawful  for  any  creditor  or  holder  of 
any  debt,  book  account,  or  claim  against  any 
laborer,  servant,  clerk,  or  employee  of  any  cor- 
poration, firm,  or  individual  in  the  state  to  sell, 
assign,  or  dispose  of  such  claim,  etc.,  to  any 
person,  iii'm,  or  corporation,  or  to  institute  else- 
where than  in  the  state,  or  prosecute  any  suit 
for  such  claim  against  such  laborer,  etc.,  by  any 
process  seeking  to  attach  the  wages  of  such  per- 
son earned  within  sixty  days  prior  to  the  com- 
mencement of  such  proceedings  for  the  purpose 
of  avoiding  the  effect  of  the  laws  of  "Wyoming 
concerning  exemptions,  and  it  is  made  unlawful 
for  any  person  to  aid,  assist,  abet,  or  counsel  a 
violation  of  this  act.  Proof  of  the  institution  of 
such  suit  or  service  of  garnishment  by  any  per- 
son, firm,  or  individual  in  any  court  of  any  state 
or  territory  other  than  in  Wyoming,  is  declared 
prima  facie  evidence  of  such  evasion  of  the  law 
of  Wyoming,  and  such  persons  may  be  made 
liable  to  the  parties  injured  for  the  amount  of 
the  debt  so  sold  or  assigned  and  an  attorney's 
fee.  The  constitutionality  of  this  amazing  stat- 
ute may,  perhaps,  be  questioned. 

§  35.  Ordinary  Exemptions  not  Valid  against 
Labor  Debts. — By  the  constitution  of  Virginia, 
and  the  statutes  of  a  few  other  states,  no  prop- 
erty is  exempt  from  attachment    or  execution 


OF   THE   UNITED   STATES  127 

for  wages  due  any  clerk,  mechanic,  laborer,  or 
servant,^  or  no  stay  is  granted  upon  such  claims.^ 

And  the  ordinary  exemptions  of  personal 
property  from  execution  are  much  restricted 
in  tlie  case  of  judgments  obtained  for  labor  or 
services  other  than  professional.^ 

The  constitutionality  of  such  statutes  will  be 
discussed  in  §  36.  The  New  York  law,  applying 
only  to  female  creditors,  is  subject  to  special 
criticism ;  see  §  13. 

§  36.     Preference  or  Priority  of  Wage  Debts 

And  further,  the  state  laws  very  generally  give  a 
claim  either  absolutely  preferred,  or  preferred 
after  taxes,  state  or  government  dues,  and  costs, 
to  servants,  laborers  and  employees,  and  in  some 
cases  clerks,  for  debts  due  for  wages  or  salaries, 
above  all  other  claims  against  the  estate  of  an 
insolvent  person,'  or  an  insolvent  corporation  or 


'  Va.  Const.,  11,  1;  Code,  3630;  New  York  city,  N.  Y.. 
1882,  410,  1086  (as  to  females,  only,  up  to  $50) ;  Mich.,  7091 ; 
Mo.,  4910;  Kan.,  C.  L.,  1885,  2G60;  Neb.  C.  C.  P.,  531; 
Okla.,  2848.  But  the  amount  of  the  claim  is  sometimes 
limited ;  as,  in  Michigan,  $25,  in  New  York,  .$50,  in  Mis- 
souri, $90.  The  ordinary  exemption  may  be  claimed  against 
labor  debts  of  a  greater  amount. 

•■'  Mich.,  7091  a. 

«  Mich.,  7717  a-7717f. 

'  N.H.,  201,  32;  Vt.,2148;  R.  I.,  237,  14;  1885,497;  Ct., 
514;  Mass.,  137,  1;  157,  104;  N.  Y.  R.  S.,  p.  2542;  1885, 
376;  1886,  283;  1895,  899;  Pa.  Dig.,  p.  140,  §  4;  1891,  46; 


128        HANDBOOK    TO   THE   LABOR   LAW 

its  receiver,^  or  the  estate  of  a  deceased  insol- 
vent.^ Such  preference  is  usually  given  to  claims 
not  exceeding  a  fixed  amount/  or  for  wages  due 
for  not  more  than  a  limited  time.^  But  in  the 
case  of  a  receivership,  there  appears  to  be  no 
such  limitation,  iu  Indiana.*^ 

And  in  some  states  a  lien  is  given  to  all  la- 
borers for  amounts  due  from  a  corporation  up 
to  the  time  of  the  act  of  insolvency  upon  all  the 
assets  of  the  company,  which  is  paid  prior  to  any 
other  debt,  and  such  lien  is  given  to  all  work- 
men or  employees,  or  claimants  for  labor  or  ser- 
vices whether  in  the  actual  employ  of  the  cor- 


N.  J.,  p.  38,  8;  Ind.,  7051;  Mich.  8749  m;  111.,  72,  42;  1887, 
p.  308;  Wis.,  1693  c;  Del.,  1879,  147;  lo.,  1890,  48;  Minn., 
6256;  Neb.,  6,  44;  Mo.,  4911;  Cal.,  1204-5;  Nev.,  3829; 
Ore.,  1893,  p.  30;  Col.,  1885,  p.  48,  25;  Wash.,  3122;  Wy., 
1893,  15;  Mon.  C.  C.  P.,  2150;  Utah,  1892,  30;  La  ,  3191; 
Ariz.,  1889,  10. 

«N.  Y.,  711,  1887,  p.  308;  Mo.,  2538;  lo.,  Pa.,  Minn., 
6254;  Ore.,  Nev.,  Mon.,  Utah. 

=  Mas8.;  Minn.,  6256;  Cal.;  Nev.,  3830;  Wash.,  3123; 
Mon. ;  Ala.,  2079  ;  La. ;  Mo.,  183. 

*  Such  as  $50  (Del.,  N.  H.,  Vt.,  Ind.,  Col.)  ;  #100  (Ct., 
R.  I.,  Mo.,  Mass.,  Pa.,  Neb.,  Ariz.,  Cal.,  Wash.,  lo.);  $200 
(Pa.,  1891,  46;  Minn.,  Nev.,  Mon.,  Ariz.);  $300  (N.  J.). 

*  In  others  the  amount  is  not  limited  (N.  Y.,  Utah,  Mich., 
Wis.,  Wy.,  Ore.).  For  a  time  not  exceeding  one  month 
(Del.)  ;  sixty  days  (Cal.,  Wash.,  Ariz.,  Mon.)  ;  three  months 
(Wy.,  Nev.,  Wis.,  lo.,  Ct.,  111.)  ;  six  months  (N.  H.,  Vt., 
Ind.,  Minn.,  Col.,  R.  I.,  Mo.,  Ore.,  Uta.)  ;  nine  months 
(Neb.);  twelve  months  (Mass.,  Ala.,  La.). 

•R.  S.,  7058. 


OF  THE  UNITED  STATES       129 

poration  at  the  time  of  the  insolvency  or  not.' 
So,  in  New  Jersey,  whenever  a  receiver  is  ap- 
pointed in  a  suit  at  law  or  equity,  to  take  pos- 
session of  property  of  any  manufacturer,  etc., 
and  wages  are  due,  the  chancellor  may  order  a 
sale  of  the  property  to  pay  the  same  without 
delay,  or  so  much  of  it  as  may  be  necessary.^ 

And  the  statute  is  not  unusual  that  claims  for 
labor  done  on  railroads,  or  liabilities  to  con- 
tractors for  construction,  laborers,  etc.,  take  pre- 
cedence of  any  mortgage  before  or  after  created.' 
And,  in  Pennsylvania,  and  any  assignment  or 
conveyance  of  the  real  or  personal  estate  of  said 
company  without  the  written  assent  of  such 
creditors  first  obtained  is  declared  fraudulent 
and  void.  And  in  New  Jersey  no  attachment  or 
execution  may  be  made  on  the  property  of  any 
manufacturer  or  other  person  unless  all  claims 
due  for  labor,  not  exceeding  one  month's  wages, 
are  first  paid.'" 


'N.J.  Rev.,  p.  188,  §  63;  1887,  71;  Minn.,  6254;  Del., 
1883,  147,  38.  « N.  J.  Sup.,  p.  770,  §  1. 

»Pa.  Dig.,  p.  139,  §  1;  Ky.  G.  S.,  70,  3,  1;  and  so  of 
manufactories,  etc.,  in  Kentucky.  In  Garrett  County,  Mary- 
land, if  any  individual  engaged  in  mining  or  manufacturing, 
or  any  corporation  whatever,  is  indebted  for  thirty  days  to 
employees,  or  to  furnishers  of  raw  material  in  the  aggregate 
sum  of  twenty-five  dollars,  and  neglects  or  refuses  to  pay  the 
same,  the  circuit  court  may.  upon  petition  of  any  such  em- 
ployee or  material  man  appoint  a  receiver  : — Md.  Local  Laws, 
1888  (Garrett  Co.),  145.  "N.  J.  Rev.,  p.  749,  §  1. 

9 


130        HANDBOOK    TO   THE   LABOR   LAW 

The  constitutiouality  of  such  statutes  as  the 
above  has  rarely  been  brought  into  question,  but 
must  probably  rest  either  on  the  police  power 
(^  4)  or  on  the  precedent  of  the  bankruptcy 
act.  They  do  not  "impair  the  obligation  of 
contracts  "  (see  §  2),  because  all  contracts,  in- 
cluding those  of  other  creditors,  may  be  con- 
sidered as  entered  into  with  reference  to  these 
laws.  They  have  been  upheld  in  the  case  of 
mortgages  of  coal  mines,  where  a  statute  gave 
laborers  a  superior  claim,  the  mortgage  being 
made  after  the  statute;"  and  in  the  case  of  a 
statute  giving  preference  to  labor  creditors  over 
the  ordinar}^  creditors  of  a  corporation,'*  Still  it 
is  difficult  to  see  Avhy  they  are  not  class  legisla- 
tion, however  justifiable  morally. 

§  37.  Stockholders  Specially  Liable  for  Wage 
Debts. — Besides  the  ordinary  provisions  of  law 
making  stockholders  personally  liable  for  the 
debts  of  corporations  in  certain  cases,  Michigan 
has  a  constitutional  jorovision,  and  several  states 
have  passed  express  statutes,  making  them  in  all 
cases  individually  liable  for  debts  of  the  cor- 
poration due  for  labor  or  personal  ser\dces.'    In 

>i  Warren  v.  Solen,  112  Ind.,  213. 

"Ripley  V.  Evans,  87  Mich.,  217. 

'Mass.,  106,  61;  N.  Y.,  1892,  688,  54;  Pa.,  1854,4385, 
1874,  10,  11;  Mich.  Const.,  15,7;  Wis.,  1769;  N.  C,  1940; 
Okla.,  1074. 


OF  THE   UNITED   STATES  131 

some  states  each  stockholder  is  jointly  and  sev- 
erally liable  therefor-  to  any  extent,^  in  others 
only  to  an  amount  equal  to  the  par  value  of  his 
stock.^  In  most  cases  a  demand  must  first  be 
made/  or  suit  brought,^  against  the  corporation. 
In  some  states  the  law  applies  only  to  railroads  ^ 
or  manufacturing  corporations,'^  mining  compa- 
nies,^ and  other  specified  classes  of  corporations.' 

Of  the  constitutionality  of  such  statutes  there 
can  be  no  doubt,  except  perhaps  in  states  where 
the  constitution  forbids  the  amendment  of  cor- 
porate charters  by  special  law.     Compare  §  11. 

In  New  York  stockholders  of  any  corporation 
are  jointly  and  severally  liable  personally  for 
debts  due  laborers,  servants,  or  employees,  after 
written  notice  by  such  employee  given  within 
thirty  days  after  termination  of  such  services, 
and  action  brought  within  thirty  days  after  the 
return  of  an  execution  unsatisfied  against  a  cor- 
poration. Executors  and  trustees  are  not  so 
liable,  unless  they  voluntarily  invested  them- 
selves in  the  stock.'" 

^  Mass.,  N.  Y.,  N.  C,  Okla.  But  not  for  an  amount  due 
for  services  rendered  more  than  six  months  before  :  Mass., 
Pa.  (in  mfg.  co's).  So,  for  thirty  days'  wages,  only  (N.  C), 
or  six  months  (Wis.). 

^  Pa.  Dig.,  p.  423,  99  (of  general  corporations) ;  Wis. 

*  Mass.,  N.  Y.  "  Pa..  N.  Y.,  N.  C,  Okla. 

"N.  C.  "I  Pa.,  Mass.,  Okla. 

8  Pa.,  Okla.  »  Mass. 

"N.  Y.,  1890,  564,  57;   1892,  688,  54. 


132         HANDBOOK   TO   THE   LABOR  LAW 

§  38.  Insurance  and  Beneficiary  Funds  Exempt 
to  Laborers.  —There  are  frequent  provisions  in 
the  various  states  providing  that  life  insurance 
moneys  shall  go  to  the  widow  or  children  free 
of  the  claims  of  creditors.'  And  in  some  states 
there  are  similar  provisions  relating  to  benefi- 
ciary funds  paid  over  by  benefit  societies,  etc., 
not  exceeding  the  sum  of  five  thousand  dollars, 
or  a  similar  amount.^ 

§  39.  Other  Legal  Privileges  of  Laborers,  Etc. — 
Suitors  for  money  due  for  personal  service  have 
in  several  states  special  privileges  in  the  courts. 
Thus  in  some  states  action  for  wages  "  shall  be 
first  in  order  for  trial,"  '  no  security  for  costs  is 
required,^  additional  costs  may  be  recovered,^ 
no  court  fees  at  all  required,'*  no  stay  of  execu- 

'  See,  particularly,  S.  D.,  1890,  86,  45;  Fla.,  2347,  whereby 
any  sum  is  so  free  if  insured  to  the  widow  or  children.  In 
Mississippi  $5,000  is  free,  though  the  policy  be  in  the  name 
of  the  executor,  Miss.,  1965,  or  $10,000  to  the  insured,  Miss., 
1966. 

*Any  amount  is  so  declared  free,  Minn.,  1885,  184,  17; 
$5,000,  Minn.,  G.  S.,  34,  369;  any  amount  up  to  $250  an- 
nual premium,  Ida.,  4480. 

'O.,  5134. 
■  •■'Wis.,  3783a;  Mich.,  7717e. 

^  As  to  female  employees  others  than  domestic  servants : 
N.  Y.,  1882,  410,  1424  (in  New  York  City)  ;  C.  C.  P.,  3131 
(in  Brooklyn). 

*  In  suits  for  less  than  $50  in  New  York  City  :  N.  Y.,  1882, 
410,  1416. 


OF   THE   UNITED   STATES  133 

tion  allowed,^  or  a  special  attorney's  fee  re- 
covered.^ 

The  constitutionality  of  such  class  legislation 
may  in  some  states  be  open  to  question.  It 
was  denied  in  Michigan  and  Ohio  as  to  extra 
attorney's  fees,"  but  sustained  in  Michigan  as  to 
dispensing  with  security  for  costs  in  cases  of 
claims  for  labor.* 

And  in  Michigan,  where  there  is  a  stringent 
law  against  trusts,  there  is  a  special  exception 
that  this  anti-trust  act  shall  not  apply  to  con- 
tracts and  combinations  relating  to  the  services 
of  laborers  or  artisans  who  are  formed  into  so- 
cieties or  organizations  for  the  benefit  and  pro- 
tection of  their  members.^     See  in  section  54. 

§  40.  Prison  Labor  has  lately  been  forbidden 
or  regulated  in  many  of  the  states,  in  the  in- 
terest of  the  labor  class  ;  while  in  others  it  is 
expressly  authorized.  In  some  it  may  be  leased 
or  hired  out  indefinitely,  in  others  only  within 
the  prison  walls,  in  others  only  in  certain  pre- 
scribed occupations. 

Thus  the  New  York  constitution  provides  that 

'Mich.,  7001a;   lo.,  3063. 
'Mich.,  7091a. 

'Chair  Co.  v.  Runnels,  77  Mich.,  Ill;  Hocking  V.  C.  Co. 
V.  Rosser,  41  N.  E.,  263. 

*  Jones  V.  Shiawassee  Circuit  Judge,  63  N.  W.,  976. 
•Mich.,  93540. 


134        HANDBOOK   TO   THE   LABOR   LAW 

the  legislature  shall  provide  for  the  occupation 
and  employmeut  of  prisoners,  but  that  on  and 
after  January  1,  18J)7,  no  prisoner  shall  be 
allowed  to  work  at  any  trade  or  occupation 
wherein  the  product  or  profit  of  his  Avork  is 
farmed  out,  contracted,  or  sold  to  any  person  or 
corporation,  although  the  legislature  may  provide 
that  convicts  may  work  for,  and  the  products  of 
their  labor  be  disposed  of  to,  the  state,  or  any 
political  division  thereof,  or  for  any  public  insti- 
tution owned  or  managed  by  the  state,  or  any 
political  division  thereof.' 

The  Michigan  constitution,  that  no  mechani- 
cal trades  are  to  be  taught  to  convicts  except 
those  of  which  the  chief  supply  for  home  con- 
sumption is  imported  from  outside  the  state.^ 

The  Idaho  constitution,  that  all  labor  of  con- 
victs confined  in  the  state's  prison  shall  be  done 
within  the  prison  grounds,  except  where  the 
work  is  done  on  public  works  under  the  direct 
control  of  the  State.^ 

The  California  and  Washington  constitutions, 
that  "  the  labor  of  convicts  shall  not  be  let  out 
by  contract  to  any  person,  copartnership,  com- 
pany, or  corporation,  and  the  legislature  shall  by 
law  provide  for  the  working  of  convicts  for  the 
benefit  of  the  state.  "  ^ 

'  N.  Y.  Const.,  3,  29.  *Mich.  Const.,  1,  38. 

3  Ida.  Const.,  13,  3. 

<Cal.  Const.,  10,  6;  Wash.  Const.,  2,  29. 


OF  THE   UNITED   STATES  135 

The  Montana  constitution,  to  the  same  eflfect.' 

By  that  of  North  Carolina,^  "  convict  labor 
may  be  employed  on  public  works  or  highways 
or  other  labor  for  public  benefit,  and  may  be 
farmed  out  as  provided  by  law,  but  no  convict 
shall  be  farmed  out  who  has  been  sentenced  for 
murder,  manslaughter,  rape,  or  arson." 

Where  the  statutes  are  silent,  prison  labor  is 
of  coui'se  legal,  and  many  states  have  laAvs  re- 
quiring it ;  ^  and  so,  commonly,  as  to  tramps,  for 
a  short  sentence,  or  even  for  one  night.^ 

But  by  statute  of  many  states  prison  labor 
may  not  be  leased  or  hired  outside  the  state  pris- 
on or  penitentiary.^  In  others  no  contract  may 
be  made  for  prison  labor  at  all.'*^     While  in  many 

«Mon.  Const.,  18,  2. 

«N.  C.  Const.,  11,  1. 

'N.  H.,  182,  14;  283,  3;  285,  1;  Mass.,  1884,  255,  28; 
Me.,  140,  2 ;  Vt.,  4349  ;  Pa.  Dig.,  p.  1076 ;  Del.,  133,  6 ;  Md., 
27,  315;  O.,  6801;  Ind.,  8218;  111.,  108,  19;  Mich.,  9697; 
Wis.,  4938;  Minn.,  1889,  255,  2;  lo.,  6136;  Kan.,  6442; 
Neb.,  519;  Va.,  4125;  W.  Va.,  163,26a;  Ky.,  85,  2,  13;  N. 
C,  3431;  Tenn.,  6366;  Mo.,  7232;  Ark.,  5500;  Cal.  P.  C, 
1590;  Ore.,  3862;  Nev.,  1405  ;  1887,  91  ;  Col.,  937  ;  Ida.  C, 
13,  3  ;  Wy.,  3377 ;  S.  C,  2710  ;  Ga.,  4310 ;  Ala.,  4563  ;  Miss., 
3201 ;  La.,  2855 ;  Tex.,  3560  ;  Fla.,  3057  ;  N.  M.,  479  ;  Ariz., 
2424 ;  Dak.,  Pol.  C.  App.,  53,  9. 

« Me.,  1889,  288. 

•  Minn.,  t6.,  7,  8 ;  Wis.,  4938  ;  Kan.,  6440;  Mo.,  7238; 
Ariz.,  2424 ;  Ore.,  3864  ;  Ida.,  Dak.,  Pol.  C.  App.,  53 ;  La., 
Miss. ;  and  so  in  other  states  of  convicts  for  murder,  rape,  or 
arson ;  Tenn.,  6367;  N.  C,  S.  C. 

'"Mass.,  1887,  447  ;  N.  J.  Sup.,  p.  969,  17,  18,  21;  Del.; 


1H6         HANDBOOK    TO   THE    LABOR   LAW 

contracts  are  expressly  authorized,"  or  even 
leases  imtsiile  the  prison  walls. ''^  In  others,  pris- 
on labor  outside  the  walls  may  be  employed  by 
the  state,  or  by  counties  or  towns,"  or  by  rail- 
way, or  other  specified  corporations,'*  or  in  spe- 
cified occupations,  such  as  work  on  the  roads,'' 
railroads,"  coal  mines,"  or  tramps  at  breaking 
stone  only." 

Contracts  for  prison  labor  are  often  limited 
to  a  certain  period  ;  that  is,  they  are  prohibited 
for  a  longer  time  than  two,"  four,"  five,°'  ten,"  or 
twenty  "  years,  and  the  time  of  labor  may  not 
exceed  eight "  or  ten  hours  a  day."' 

Pa.  Dig.,  1661 ;  O.,  7388-58 ;  Minn.,  ib.",  7  ;  Col.,  1887,  p.  232 ; 
Ga.,  4310  ;  Wy.,  33729 ;  U.  S.,  1887,  213  ;  except  on  the 
"  piece  "  or  "  process  "  plan,  N.  J.,  O.,  Minn. 

"  Vt. ;  R.  I.,  254,  10  ;  Ind.,  111. ;  Mich.,  9709;  Kan.,  6440; 
Neb.,  Va.,  W.  Va.,  Ky.,  Tenn.,  Ark.,  Nev.,  Dak.,  ib. ;  Tex., 
3572;  S.  C,  1885,  64;  Fla.,  3065  ;  N.  M.,  Ariz.,  2424. 

'«Ind.,  Mich.,  9709;  Neb.,  Md.,  W.  Va.,  Ky.,  Tenn., 
Ark.,  Tex.,  3577,  3604;  Nev.,  1406;  S.  C,  2729;  Ga., 
4813  (a)  ;  Ala.,  4595  ;  Miss.,  Fla.,  N.  M.,  488;  Ariz. 

>3Io.,  6137  ;  O.,  6801;  Va.,  4133;  W.  Va.,  N.  C,  Col., 
S.  C,  1885,  64;  Tex.,  3591  ;  Ida. 

"N.  C,  3433  ;  1889,  314;  A^a.,  4136. 

"Wy.,  3374;  lo.,  6137.  »«Va.,  4136. 

"  Ark.  '8  Me. 

"  Two  years  ;  N.  M.,  Mich.,  Minn.,  7497.    =°  Fla.,  3065. 

«'  O.,  Nev.,  Dak.,  Pol.  C,  p.  710  ;  Vt. 

''•^Ky.,  Mo.,  Kan.,  6442  ;  Ore.  '^Qa. 

**Minn.,  lo.  Eight  hours  in  winter,  ten  in  summer; 
Mo.,  7214. 

"Kan.,  6446;  W.  Va.,  Tenn.,  Ore.,  Kan.,  Fla.,  3033. 


OF  THE   UNITED   STATES  137 

In  states  where  prison  labor  is  authorized  only 
in  the  gaol  limits,  it  is  frequently  subject  to 
strict  limitation  by  law.  Thus  it  is  usually  to  be 
employed,  so  far  as  practicable,  upon  industries 
which  do  not  exist  outside  in  the  state,^*'  or  so  as 
to  compete  as  little  as  possible  with  free  labor.^^ 
So  far  as  possible,  prison  labor  is  to  be  devoted 
to  the  manufacture  of  articles  for  the  use  of  the 
state  and  county  institutions  ;  ^  and  in  some  the 
labor  is  to  be  of  the  hardest  and  most  servile 
kind,'^  in  others  only  so  much  as  may  be  neces- 
sary for  the  prisoners'  health.^  And  in  some 
states  no  machinery  may  be  used  not  propelled 
by  hand  or  foot  power.^^  There  is  a  recent  statute 
in  several  states  requiring  that  all  prison -made 
goods  must  be  so  labelled ;  *^  but  this  law  ap- 
plies (except  in  Maine)  only  to  goods  made  out 
of  the  state,^  and  was  therefore,  in  New  York, 
declared  unconstitutional.^^ 

So,  "  It  shall  be  unlawful  for  the  state,  its  offi- 

«Me.,  1887,  149;  Col.,  1889,  p.  427. 

"  Ct.,  3355  ;  Mass.,  1887,  447 ;  1888,  403  ;  Ga.,  4310  ;  Wy., 
3375  ;  Minn.,  1889,  255. 

'8 Mass.,  O.,  Minn.,  N.  J.  Sup.,  p.  969,  §21. 

"D.  C,  1126. 

^'Wy.,  3375. 

^'  Mass. 

3-  Me.,  1887,  149  ;  N.  Y.,  1887,  323  ;  N.  J.,  1887,  176; 
Pa.  Dig.,  p.  1661  ;  Ind.,  1895,  162. 

"0.,  1888,  92;  N.  Y.,  1894,  698  ;  Ind.,  ib. 

"*  People  V.  Hawkins,  32  N.  Y.  Sup.,  524. 


138         IIAXDROOK    TO   THE   LABOR   LAW 

cers  or  represeutatives,  or  any  county,  city,  or 
town,  ov  their  officers  or  representatives,  to 
knowingly  bring  into  the  state,  or  cause  to  be 
brought  into  the  state,  any  material  for  use  in 
the  erection  of  or  repairing  of,  any  public  build- 
ing, the  labor  in  preparing  which  or  any  part 
of  which  has  been  performed  by  convicts.  "  ^^ 

And  in  Indiana,  no  person  can  sell  convict- 
made  goods  without  a  license  ;  and  there  are 
other  elaborate  provisions  for  returns  and  regu- 
lations. 

No  person  confined  in  any  penitentiary,  or 
other  place  for  confinement  of  offenders,  under 
the  control  of  the  state,  shall  be  employed  in  or 
about  the  manufacture  or  preparation  of  any 
drugs,  medicines,  food  or  food  material,  cigars 
or  tobacco,  or  any  preparation  thereof,  pipes, 
chewing-gum,  or  any  other  article  or  thing  used 
for  eating,  drinking,  chewing,  or  smoking,  or  for 
any  other  use  within  or  through  the  mouth  of 
any  human  being.  ^ 

§  41.  Industrial  Education — The  apprentic- 
ing of  minors  is  regulated  in  all  the  states ;  but 
most  of  the  statutes  upon  this  subject  are  old 
laws,  as  the  practice  has  generally  fallen  into  dis- 
use.    See,  however,  Ala.,  1890,  51.     For  refer- 


'*Col.,  1887,  232,  3. 
»'  Ct..  1895.  153. 


OF   THE   UNITED   STATES  139 

ences  to  the  statutes,  see  Vol.  I.,  Stimson's  Am. 
Stat.  Law,  Art.  666.  The  enticement  and  har- 
boring of  apprentices  is  sometimes  forbidden 
by  more  recent  statutes.     Compare  §  5.^ 

Provision  is  now  made  in  many  of  the  states 
for  industrial  training,  or  the  teaching  of  manual 
arts  in  the  public  schools.^ 

In  New  Jersey  and  New  York  provision  is 
made  for  free  lectures  to  working  j)eople  on  nat- 
ural science  and  kindred  subjects,  and  the  pur- 
chase of  books,  stationery,  charts,  and  other 
things  necessary.  These  lectures  are  given  in 
New  York  in  the  evening  in  public  school-houses, 
one  at  least  in  each  ward.^ 

In  Pennsylvania  special  legislative  encourage- 
ment is  given  to  the  Pennsylvania  Museum  and 
School  of  Industrial  Art,  which  is  declared  to  be 
the  only  institution  of  its  kind  in  the  United 
States.^ 

'  See  Md.,  1890,  811. 

-  For  special  statutes  upon  this  subject,  see  N.  J.,  1887, 
173;  1888,  38;  1895,  294;  Ct.,  2118;  N.  Y.,  1888,  334;  O., 
1887,  P.,  92;  lo.,  1621;  1874,  64;  Ga.,  1273;  1885,  423;  Wy., 
1895,  88.  In  other  states  it  is  provided  for  in  many  cases 
by  the  general  school  law. 

3  N.  Y.,  1888,  545;  N.  J.,  1895,  48. 

*  Pa.,  1888,  88. 


140        HANDBOOK   TO   THE   LABOR   LAW 


CHAPTEK  IV 

PROFIT-SHARING,    CO-OPERATION,    AND    LABORERS* 
STOCK 

§  42.  Co-operative  Associations. — The  consti- 
tution of  Wyoming  provides  that  the  legislatui'e 
shall  provide  by  suitable  legislation  for  the  or- 
ganization of  mutual  and  co-operative  associa- 
tions or  coi-porations.^ 

The  laws  of  several  states  provide  for  co- 
operative associations  to  carry  on  any  ordinary 
manufacturing  or  distributive  business.  Of 
these  the  statutes  of  Massachusetts,  Connecticut, 
New  Jersey,  and  Minnesota  are  somewhat  simi- 
lar.^ They  provide  that  seven  or  more  persons 
may  associate  themselves  with  a  capital  between 
$1,000  and  $100,000  (in  Ct.  $50,000)  for  the  pur- 
pose of  carrying  on  any  mechanical,  mining, 
manufacturing,  agricultural,  quarrying,  or  print- 
ing business,  etc.  Such  corporations  must  dis- 
tribute their  profits  and  earnings  among  their 
workmen,  purchasers,  and  stockholders  at  cer- 


'  Wy.  Const.,  Art.  10,  §  10. 

'  Mass.,  106,  9,  72  &  73;  Ct.,  1895-1904;  N.  J.  Sup.,  p. 
138;  Minn.  G.  S.,  34,  155,  165. 


OF  THE   UNITED    STATES  141 

tain  times  and  in  such  manner  as  prescribed  by 
their  by-laws,  but  at  least  (except  in  Connecti- 
cut) as  often  as  once  in  twelve  months.  Except 
in  New  Jersey,  no  person  may  hold  shares  in 
such  co-ojDerative  association  to  an  amount  ex- 
ceeding $1,000  at  their  par  value  ;  and  in  all  states 
no  stockholder  is  entitled  to  more  than  one  vote 
on  any  subject,  and  this  provision  is  commonly 
followed  in  all  such  statutes.  In  Massachu- 
setts, Connecticut,  and  New  Jersey  no  distribu- 
tion of  profits  can  be  made  until  at  least  ten  per 
cent,  (in  New  Jersey  5  per  cent.)  of  the  net  prof- 
its has  been  appropriated  for  a  sinking  fund, 
until  there  has  been  accumulated  a  sum  equal  to 
thirty  per  cent,  (in  Connecticut  20  per  cent.)  in 
excess  of  its  capital  stock.  No  certificate  of  shares 
shall  be  issued  to  any  person  until  the  full  amount 
thereof  shall  have  been  paid  in  cash.  No  person 
shall  be  allowed  to  become  a  shareholder  in  such 
association  except  by  the  consent  of  the  manag- 
ers of  the  same.^  The  members  are  liable 
ratably  upon  dissolution  for  debts.* 

Similar  laws  exist  in  several  other  states.^ 


3  Minn.  G.  S.,  34,  162;  Ct.,  1902;  N.  J.,  p.  140. 

<  N.  J. 

^  In  New  York  any  number  of  persons,  not  less  than  three, 
may  form  a  co-operative  association,  with  a  capital  of  not 
less  than  one  thousand  dollars,  and  must  use  the  word  "  co- 
operative "  as  part  of  their  corporate  or  business  name,  but 
are  liable  ratably  for  debts,  etc.     N.  Y.,   18G7,  971;  and  so 


14"i        HANDBOOK    TO   THE   LABOU   LAW 

§  -43.    Special  Stock — In  Massachusetts  there 
is  a  hiw  ]>ioviding  for  special  stock  which  may 


in  Kansiis,  each  member  having  one  vote.  (Kan.,  1456-58.)  In 
Pennsylvania,  co-operative  associations,  protective  and  dis- 
tributive, may  be  incorporated  by  five  or  more  persons,  whose 
stock  capital  shall  consist  of  the  amount  standing  to  the  credit 
of  the  members ;  and  there  may  be  two  classes  of  shares,  one 
of  which,  known  as  ''  permanent  stock,"  shall  not  be  with- 
drawable, but  may  be  transferred  subject  to  the  by-laws,  and 
each  member  must  hold  at  least  one  share  thereof;  and  the  other 
class,  "  ordinary  stock,"  which  may  be  repaid,  transferred, 
or  withdrawn  in  accordance  with  the  by-laws.  The  shares  of 
either  class,  in  amounts  from  five  to  twenty-five  dollars  each, 
may  be  paid  for  by  installments,  or  otherwise,  or  by  the  in- 
terest thereon,  or  by  profit  dividends.  No  amount  of  stock  to 
be  held  by  any  one  person  or  firm  shall  exceed  one  thousand 
dollars,  unless  specially  consented  thereto,  and  no  member  to 
have  more  than  one  vote,  to  be  given  in  person,  and  not  by 
proxy.  Minors  may  hold  such  shares.  All  transactions  be- 
tween such  association  and  its  members  or  other  persons 
shall  be  for  cash,  the  members  to  be  severally  and  jointly 
liable  for  all  debts  for  labor,  and  for  other  debts  lawfully 
incurred  to  the  amount  of  their  unpaid  capital  stock  and  no 
more,  and  such  company  may  be  authorized  to  invest  its 
funds  in  stock  of  other  similar  co-operative  associations.  (Pa. 
Dig.,  p.  389.)  And  by  a  recent  statute,  with  the  preamble 
that,  "whereas  associations  of  capital  are  protected  by  law, 
associations  of  labor  should  have  the  same  privileges,"  it  is 
enacted  that  five  or  more  employees,  three  of  whom  must  be 
citizens  of  the  United  States,  may  form  themselves  into 
an  association  for  their  mutual  aid  and  benefit  and  pro- 
tection in  their  trade  concerns,  with  the  ordinary  corporate 
powers  and  authority  to  hold  indefinite  amounts  of  real  estate 
and  personal  property,  and  adopt  by-laws,  etc.,  not  inconsist- 
ent with  law.     (Pa.,  1889,  194.) 


OF   THE    UNITED    STATES  143 

be  issued  to  the  employees  only  of  any  corpora- 
tion by  vote  of  the  general  stockholders.     The 


This  preamble  is  a  glittering  generality,  but  rather  a  dan- 
gerous one,  as  it  would  seem  to  be  easy  for  any  five  persons 
who  call  themselves  employees  thereby  to  form  a  corporation 
with  practically  unlimited  powers  in  holding  real  estate,  etc., 
which  is  distinctly  not  a  privilege  granted  to  ordinary  corpo- 
rations of  capital.  It  has  been  omitted  from  the  new  Digest. 
Pa.  Dig.,  p.  2017. 

In  Wisconsin,  any  number  of  persons,  not  less  than  five, 
may  form  a  co-operative  association  to  carry  on  any  trade 
or  business  with  shares  of  a  par  value  from  one  to  ten  dollars, 
and  such  association  or  its  members  may  own  shares  in  any 
similar  association  not  exceeding  one-third  the  capital  stock 
thereof,  but  having  only  one  vote  therein.  The  capital  stock 
is  exempt  from  execution  or  attachment  except  for  debts  of 
the  association,  and  members  are  liable  for  such  debts  to  an 
amount  equal  to  the  par  value  of  their  paid-up  capital  stock 
proportionately,  and  such  associations  may  sue  and  be  sued, 
hold  property,  and  have  all  the  rights  and  privileges  of  other 
corporations  or  citizens.     Wis.,  1887,  126. 

In  Michigan,  five  or  more  persons  may  unite  as  a  co-opera- 
ative  association  for  purposes  of  distribution  or  manufacture 
or  agriculture,  with  capital  stock  consisting  of  shares  from 
five  to  twenty-five  dollars  in  par  value,  and  not  less  than  five 
thousand  nor  more  than  five  hundred  thousand  dollars  in 
amount.  But  both  stockholders  and  directors  are  severally 
and  jointly  liable  for  all  debts  for  labor  performed  for  said 
corporation.     Mich.,  3935-3940. 

"A  co-operative  business  corporation  is  a  corporation  formed 
for  the  purpose  of  conducting  any  lawful  business  and  of 
dividing  a  portion  of  its  profits  among  persons  other  than  its 
stockholders.  Co-operative  business  corporations  shall  be 
formed  under  and  governed  by  Division  First,  Part  IV.,  Title 
1,  of  the  civil  code  of  the  state,  and  when  so  formed,  may, 


144        HANDBOOK   TO   THE   LABOII    LAW 

par  value  of  such  stock  is  ouly  teu  dollars,  and 
may  be  paid  for  iu  instalments.  Such  special 
stock  shall  not  exceed  two-fifths  of  the  actual 
capital  of  the  corporation.  Whenever  a  dividend 
is  paid,  the  holders  of  such  stock  receive  their 
full  proportionate  share.  Special  stock  can  only 
be  sold  or  transferred  to  employees  or  to  the  cor- 
poration itself,  and  the  by-laws  may  provide  as 
to  the  number  of  shares  of  such  stock  which 
may  be  held  by  any  one  employee,  and  the 
methods  of  transfer  and  redemption  of  such 
stock  in  case  any  person  holding  it  cease  to  be 
an  employee.     (Mass.,  1886,  209.) 

This  statute  has  not,  however,  proved  effective, 
and  it  has  not  been  copied  in  other  states. 

§  44.  Profit-sharing. — Except  as  above  and  in 
section  42,  there  have  been  no  statutes  passed  in 

in  their  by-laws,  in  addition  to  the  matters  enumerated  in 
section  three  hundred  and  three  of  said  code,  provide  : 

"  1.  For  the  number  of  votes  to  which  each  stockholder 
shall  be  entitled,  and, 

'•  2.  The  amount  of  profits  which  shall  be  divided  among 
persons  other  than  the  stockholders,  and  the  manner  in  which 
and  the  persons  among  whom  such  division  shall  be  made." 
Cal.  Civil  Code,  1878,  p.  63,  §  1. 

"  There  is  also  a  recent  and  elaborate  statute  providing  for 
the  incorporation  of  co-operative  associations  for  any  lawful 
business,  in  which  "  the  rights  and  interest  of  all  members 
shall  be  equal,  and  no  member  can  have  or  acquire  a  greater 
interest  therein  than  any  other  member  has,"  wherefore  it 
appears  likely  to  become  a  dead  letter.     See  Cal.,  1895,  183. 


OF  THE   UNITED   STATES  145 

any  of  the  states  regulating  the  subject  of  profit- 
sharing  in  the  ordinary  way.  There  is,  however, 
no  legal  objection  to  an  employer's  determining 
wages  or  part  of  the  wages  paid  by  the  amount 
of  profits  of  the  business,  and  such  a  relation  will 
not  effect  a  partnership  between  him  and  his 
employees.  It  is  possible,  however,  that  such 
an  arrangement  w^ould  be  difticult,  if  not  impos- 
sible, in  states  where  weekly  payment  laws  exist. 
(See  discussion  of  this  subject  in  section  21.) 


10 


146        HANDBOOK    TO   THE    LABOK    LAW 


CHAPTER  V 

STATE   REGULATION  OF  FACTORIES,  MINES,  AND 
WORKSHOPS 

§  45.  The  Factory  Acts — (See  also  §§  17,  18.) 
The  precedent  of  the  English  factory  acts  passed 
originally  in  1831  has  been  very  generally  fol- 
lowed in  nearly  all  the  states.  The  right  of  the 
state  legislatures  to  impose  such  regulations 
by  law  rests  upon  the  Police  Power,  which  we 
have  discussed  in  §  4.  Such  statutes  are  doubt- 
less constitutional  in  any  case  where  the  reason 
of  the  regulation  is  based  upon  considerations  of 
the  public  health,  safety,  and  comfort,  or  the 
health  and  morals  of  the  operatives,  and  is  ap- 
parent on  the  face  of  the  statute  ;  but  it  will  not 
do,  under  the  guise  of  police  regulation,  to  pass 
statutes  of  which  the  real  purpose  is  different, 
even  though  they  be  in  the  interest  of  any  par- 
ticular trade  or  otherwise  desirable.  Such  regu- 
lations or  reformations  can  only  be  attained  by 
combination  among  the  workmen  themselves  to 
see  that  they  are  complied  with. 

The  statutes  which  have  been  passed  on  this 
subject  are  very  many  in  number,  but  among  the 
more  important  may  be  mentioned  the  following : 


OF   THE   UNITED   STATES  147 

Statutes  providing  for  the  preservation  of  the 
health  of  employees  in  factories  by  the  removal 
of  excessive  dust,  or  for  securing  pure  air,  or 
requiring  fans  or  other  special  devices  to  remove 
noxious  dust  or  vapors  peculiar  to  the  trade ; ' 
statutes  requiring  guards  to  be  placed  about 
dangerous  machinery,  belting,  elevators,  wells, 
air-shafts,  etc.;^  statutes  providing  for  fire- 
escapes,^  adequate  staircases  with  rails,  rubber 
treads,  etc.;''  doors  opening  outward,  etc.;  ^  stat- 
utes providing  against  injury  to  the  operatives 
by  the  machinery  used,  such  as  laws  prohibiting 
the  machinery  to  be  cleaned  while  in  motion,  or 
from  being  cleaned  by  any  woman  or  minor ;  ® 

1  Ct.,  1893,  204  ;  N.  Y.,  1892,  673 ;  N.  J.  Sup.,  p.  773,  25  ; 
Pa.  Dig.,  p.  866 ;  Mich.,  1895,  184;  Md.,  27,  148.  Against 
noxious  vapors  by  fans,  etc.,  see  :  Mass.,  1894,  508,  38  and  39  ; 
R.  I.,  ib.,  9;  N.  J.,  i6.,  24;  Mich.,  1887,  136;  Mo.,  8220; 
Cal.,  1889,  5  ;  La.,  1890,  123. 

2  Mass.,  104,  13,  14;  R.  I.,  1894,  1278,5,6;  Ct.,  2265, 
2266  ;  N.  Y.,  ih.,  16  and  18;  O.,  2573  c;  Mich.,  Wis.,  1887, 
549  ;  N.  J. ;  Pa.  Dig.,  p.  865. 

3Me.,  26,  26;  Mass.,  1888,316;  P.  S.,  104,  15-18;  Vt., 
1892,  83  ;  R.  I.,  1890,  286  ;  Ct.,  2645,  1855,  254  ;  N.  Y. ;  N. 
J.,  1890,  63;  Pa.;  O.,  2573;  111.,  1885,  p.  201;  Mich.,  1875, 
1841,  6  ;  Wis.,  4575  a;  Minn.,  24,  263  ;  Del.,  1881,  546;  Va., 

1890,  199;  Mo.,  8220;  Dak.,  1887,  544;  Ga.,  1889,  610; 
La.,  1888,  87;  D.  C,  1887,  45;  Wash.,  1891,  81;  Mon., 

1891,  282  ;  Wy.,  1891,80.      "Mich.,  1895,  184,  7;  N.  Y. 
'Mass.,  104,  19;  N.  J.,  1887,  177,6;  Wis.,  1636c;  Mich., 

b  ;  Miss.,  2088  ;  Dak. 

"Mass.,  Ct.,  N.  Y.,  N.  J.,  i6.,  17  ;  R.  I.,  ib.;  Mich.  Com- 
pare §§  14,  17,  18. 


148         HAXDBOOK    TO    THE    LABOR    LAW 

laws  requiring  mechanical  belt  shifters,  etc.,'  or 
connection  by  bells,  tubes,  etc.,  between  any  room 
where  machinery  is  used  and  the  engine-room  ;^ 
laws  aimed  at  overcrowding  in  factories,'*  and  at 
the  general  comfort  of  the  operatives  ;  and  many 
special  laws  in  railways,  mines,  and  other  special 
occupations,  such  as  the  laws  requiring  warning 
guards  to  be  placed  before  bridges  upon  rail- 
roads,'^ requiring  the  frogs  and  switches  or  other 
appliances  of  the  track  to  be  in  good  condition 
and  properly  protected  by  timber  or  otherwise,'^ 
providing  automatic  couplings  to  both  freight 
and  passenger  trains,'^  and,  in  building  trades, 
providing  for  railings  upon  scaffolds  and  for  suit- 
able scaffolds  generally.'^ 

There  are  most  elaborate  statutes  and  several 
constitutional  provisions  regulating  the  conduct 
of  mining  industries,  the  condition  of  mines,  the 
use  of  safety  cages,  etc.,  in  the  states  where  the 
mining  industry  predominates.^^ 

'N.  Y.,  ib.;  Pa.,  ib.,  17;  Mich.,  ib. 

8  Mass.,  1886,  173;   1890,  179. 

9N.  J.,  ib.,  23;  Wis.,  1G36  f ;  Mo.,  8220;  N.  Y.,  ib.,  14  ; 
Md.,  La.  '«N.  Y. 

"  This  statute  is  being  rapidly  adopted  in  all  the  states. 

"R.  I.,  1884,  1282. 

'=N.  Y.,  1889,  214;  1885,  314;  Md.,  1894,  158. 

"N.  Y.,  1890,  144,  394  ;  Pa.,  1885,  169  ;  1891,  177  ;  Ind., 
1891,  49;  lo.,  1884,  21;  O.,  290-306,  6871;  Vol.  83,  pp. 
165-182;  Mich.,  1887,  213;  Md.  Loc.  L.,  1888,  196-209; 
Mo.,  7061-7077  ;  Wash.,  1891,  81 ;  Mon.,  1891,  p.  282  ;  Wy., 


OF   THE    UNITED   STATES  149 

Both  manufactories  and  mines  are,  in  nearly 
all  these  states,  submitted  to  some  kind  of  public 
inspection  to  see  that  these  regulations  are  in 
force,  and  in  many  states  there  are  special  in- 
spectors appointed  for  the  purpose  ;  '^  in  others 
the  matter  is  left  to  the  state  labor  bureaus,  the 
board  of  health,  the  local  authorities,  or  the 
chief  of  police."'  An  appeal  from  their  decisions 
or  orders  may  be  taken  to  the  courts." 

Employers  are  frequently  permitted  or  re- 
quired to  ring  bells  and  use  whistles  in  towns 
and  cities,  for  the  purpose  of  waking  their  em- 
ployees or  giving  them  other  notice.  ^^ 

For  purposes  of  this  act,  a  factory  is  in  some 
states  defined  to  be  any  factory  where  five  or 


1891,  80;  Wy.  C,  Art.  9;  Wash.,  1888,  21;  1890,  121; 
Dak.,  1890,  121 ;  Mon.,  1889,  p.  160  ;  Pol.  C,  3350-3365  ; 
N.  M.  Tit.,  26. ;  O.,  Vol.,  85,  pp.  106,  325;  Vol.  86,  p.  381 ; 
Ind.,  5458-5480,  Sup.  1755-1783  ;  111.  Const.,  4,  29  ;  93,  1-19 ; 
Kan.,  3442-3474;  W.  Va.,  1890,  9;  Ky.,  1883-4,  1335; 
Tenn.,  1887,  247;  Cal.,  1872,  p.  633,  1874;  Md.,  127;  Nev., 
296  ;  Col.  Const.,  Art.  16  ;  G.  S.,  176-195. 

'"Mass.,  104,  4,  1894,  48;  R.  I.,  1894,  1278,  3;  Me.,  1893, 
220;  Ct.,  2264  ;  N.  Y.,  1892.  673  ;  N.  J.,  1894,  54  ;  Sup.,  1886, 
p.  407,  12,  13;  Pa.  Dig.,  p.  865  ;  O.,  2573  a ;  111.,  1893,  p.  9  ; 
Wis.,  1021  b ;  Minn.,  1887,  115  ;  Mich.,  1895,  184,  12  ; 
Tenn.,  1891,  157.  One  or  some  of  these  must  be  women. 
(R.  I.,  Pa.) 

i«Mich.,  1895,  184,  12  ;  La.,  1890,  123. 

•■  R.  I.,  1894,  1278,  10  ;  Ct.,  1895,  206. 

'8  Mass.,  1883.  84;  Vt..  1890,  75. 


150        HANDBOOK   TO   THE   LABOR   LAW 

more  persons  are  employed  ''  (see  also  §  13);  and 
any  such  factory,  or  any  factory,  workshop,  mer- 
cantile or  other  establishment  or  office  in  which 
two  or  more  children  or  women  are  employed 
must  be  kept  in  a  cleanly  state.*  So,  in  some 
states,  factories  must  be  limed  or  painted  once  a 
year,  or  when  so  ordered  by  the  inspector.^^ 

In  Washington  there  is  also  a  statute  pro- 
viding for  the  sobriety,  capability,  and  age  of  the 
operatives  employed.^ 

There  are  frequently  statutes  forbidding  the 
employment  upon  a  railroad  of  any  person  in  the 
habit  of  using  intoxicating  drinks  under  penalty 
to  the  corporation.^ 

In  Pennsylvania,  by  a  special  statute,  a  man- 
damus is  given  to  any  person  to  obtain  an  order 
from  the  owners  of  mines  to  work  for  and  re- 
cover the  bodies  of  miners  entombed  in  coal 
mines.^ 

Accidents  to  employees  in  factories,  etc.,  must 
commonly  be  promptly  reported  to  the  state 
inspectors  above  mentioned."^^ 

For  laws  relating  to  the  hours  of  employment, 


"  Mass.,  1894,  508,  33  ;  Mich.,  ib.,  10  ;  R.  I.,  1894,  1278  ; 
Cal.,  one  or  more ;  N.  J. 

="  Md.,  27,  148  ;  Mass.,  ib.;  Cal. 

="  N.  J.,  1887,  177,  8  ;  N.  Y.        "Wash.,  1891,  81. 

"  Mich.,  3367.  "  Pa.  Dig.,  p.  1340. 

"'  Mass.,  1890,  83  ;  R.  I.,  1894,  1278,  7  ;  N.  Y.,  N.  J. 
Sup.,  p.  772,  15  ;  Pa.,  ib.,   18  ;  0.,  7458-2. 


OF   THE   UNITED   STATES  151 

etc.,  of  women  and  children  in  factories,  see  §§ 
13,  15,  18. 

§  46.  Sweatshops. — A  few  of  the  state  legisla- 
tui'es  are  beginning  to  turn  their  attention  to  the 
abuse  of  sweatshops,  and  the  danger  of  tene- 
ment-made goods.  Thus,  in  New  Jersey  and 
Massachusetts,  the  manufacture  of  clothing,  etc., 
in  tenements  or  dwelling-houses  can  only  be 
carried  on  under  written  permit  from  the  state 
official  inspector.^  Such  dwelling  -  houses  or 
workshops  are  made  subject  to  official  inspec- 
tion.^ No  room  used  for  eating  or  sleeping  pur- 
poses shall  be  used  for  the  manufacture  of  cloth- 
ing, tobacco,  etc.,  except  by  members  of  the 
family  living  therein.^ 

In  some  states  the  manufacture  of  certain  ar- 
ticles, such  as  clothing,  artificial  flowers,  and 
cigars,  is  absolutely  forbidden  in  apartments, 
tenements,  and  living  rooms,  except  by  families 
living  therein  ;  ^  and  in  New  York  and  Illinois 
the  manufacture  of  cigars  and  preparation  of 
tobacco  was  prohibited  in  tenement-houses  on 
any  floor  partly  occupied  for  residence  purposes, 
but  this  statute  was  declared  unconstitutional.^ 

'Mass.,  1894,  508,  44;  N.  J.,  1893,  216;  Pa.,  1895,  20,  1. 

■•'  Mass.,  ib.;  N.  Y.,  1892,  655  ;  111.,  1893,  p.  99 ;  Pa.,  ih.,  2. 

»N.  Y.,  111.,  ib. 

<N.  Y.,  1892,  673,  13;  Pa.,  ib.,   1;  N.  J. 

5  N.  Y.,  1884,  272.  Sec  In  re  Jacobs,  98  N.  Y.,  98.      , 


1/52         HANDBOOK    TO    THK    LAKOll    J. AW 

Such  workshops  are  generally  to  be  kept  in 
a  oleauly  state, ^  and  the  inspector  may  report 
them  to  the  board  of  health.'  The  sale  of  goods 
made  in  tenements  in  violation  of  this  law  is 
prohibited,^  and  several  states  now  provide 
that  all  tenement-made  goods  must  be  labelled 
accordingly.^  The  inspector  has  authority  to 
examine  the  raw  material  or  the  goods  manufac- 
tured,'" and  may  at  any  time  invoke  the  board 
of  health.  In  Massachusetts  he  has  also  au- 
thority to  examine  garments  imported  into  the 
state.'"  In  Ne%^  York,  employers  of  labor  in 
sweatshops  must  keep  a  register  of  all  persons 
to  whom  they  give  work.''  For  piu-poses  of  this 
section  a  workshop  or  sweatshop  is  defined  in 
Massachusetts  to  be  "  any  premises  not  being  a 
factory  wherein  manual  labor  is  exercised  by 
way  of  trade  or  for  purposes  of  gain,  and  over 
which  premises  the  employer  has  the  right  of 
access  or  control ;  provided  that  the  exercise  of 
manual  labor  in  a  house  or  room  by  the  family 
dwelling  therein,  or  by  any  of  them,  or  in  case 
a  majority  of  the  persons  therein  employed  are 
members  of  such  family,  does  not  in  itself  make 
such  house  a  workshop."  ^ 

«  N.  Y.,  1892,  655 ;  111.,  Mass.,  ib. 

■>  Mass.,  ih.,  45  ;  N.  Y. ;  111.,  ib.,  2.    » N.  Y.,  111.,  ib.  3 

9  Mass.,  ib.,  47;  N.  Y.,  ib.,  4;  1893,  173. 

'°  Mass.,  ib.,  46. 

"  N.  Y.,  1893,  173;  Pa.  ''^  Mass..  ib.,  57. 


* 


OF  THE   UNITED   STATES  153 

In  two  states  premises  "in  the  rear"  of  a 
dwelling-house  cannot  be  used  in  the  manufact- 
ure of  such  articles  as  are  subject  to  the  law 
without  an  official  permit.'^ 

In  New  York  any  building  occupied  by  more 
than  three  families  was  declared  to  be  a  tene- 
ment-house," but  the  whole  statute  was  held  im- 
constitutional. 

The  constitutionality  of  all  such  laws  as  pro- 
hibit the  carrying  on  of  any  lawful  industry  in  a 
person's  own  home  is,  of  com-se,  subject  to  ques- 
tion. As  noted  above,  a  New  York  law  prohib- 
iting the  manufacture  of  cigars  in  tenement- 
houses  on  any  floor  partly  occupied  for  residence 
purposes,  was  declared  unconstitutional,  the 
court  holding,  in  substance,  that  it  did  not 
clearly  appear  on  the  face  of  the  law  that  its 
primary  object  was  to  secure  the  public  health. 
And  a  considerable  portion  of  the  Illinois  stat- 
ute was  invalidated  by  Eitchie  v.  Illinois.  See 
§11. 

§  47.  Intelligence  OflSces  and  Employment 
Agencies.' — So  far  as  there  is  a  legal  distinction 

•»Pa.,  189.5,  20;  N.  J.  '^  N.  Y.,  1884,  272. 

'Mass.,  1894,  180;  Me.,  1895,  156;  N.  J.,  1893,  41 ;  N.  Y., 
1888,  410;  Minn.,  1805,  205;  Mo.,  3583;  Col.,  1889,  p.  204; 
1891,  p.  188;  La.,  1894,  58;   1891,  p.  188. 

Thus,  in  Massachusetts  the  keeper  may  not  receive  pay 
unless  employment  of  the  kind  demanded  is  furnished ;  and 


ir>4        lIAXDimOK    TO   THE   LABOR   LAW 

between  the  meaning  of  these  two  terms,  it  would 
appear  that  the  former  was  limited  to  domestic 


if  the  person  is  discharged  without  fault  witliin  ten  days,  he 
can  recover  five-sixths  of  the  sum  paid  to  the  keeper,  and 
this  act  must  be  printed  on  tlie  licenses. 

In  Minnesota  and  Colorado  it  is  provided  that  no  person 
shall  engage  in  the  business  of  keeping  an  employment  bu- 
reau or  office,  or  agency  for  the  purpose  of  hiring  men  to 
work  for  others,  and  receiving  compensation  therefor,  with- 
out having  obtained  a  license,  under  penalty  of  misdemeanor, 
and  such  license  is  granted  upon  payment  of  one  hundred 
dollars,  and  filing  a  bond  conditioned  for  the  payment  of  any 
damage  which  any  person  secured  or  engaged  to  labor  for 
others  by  the  keeper  of  the  office  may  sustain  by  reason  of 
any  fraud  or  misrepresentation  on  the  part  of  such  keeper ; 
and  if  any  person  hiring  to  work  for  others  by  such  keeper 
fails  to  get  employment  according  to  the  terms  of  the  con- 
tract by  reason  of  any  unauthorized  act,  fraud,  or  misrepre- 
sentation on  the  part  of  the  office  keeper,  he  may  bring  an 
action  upon  said  bond  and  recover  full  damages. 

In  Louisiana  a  permit  from  the  mayor  and  a  $5,000  bond 
to  answer  for  frauds,  misrepresentations,  etc.,  is  required. 
In  New  Jersey  the  council  of  a  city  may  require  a  bond  and 
fix  the  compensation. 

In  Maine  the  keeper  of  an  intelligence  office  shall  not  re- 
tain any  sum  above  one  dollar,  or  any  sum  whatever  (?), 
from  a  person  seeking  employment,  unless  employment  of 
the  kind  sought  for  is  actually  furnished;  and  licenses  are 
required. 

The  intelligence  office  law  applying  to  New  York  state 
provides  in  substance  that  keepers  must  be  registered  and 
procure  a  license,  under  penalty,  which  license  shall  only  be 
granted  to  persons  of  good  general  character  by  the  mayor, 
and  may  be  revoked  if  the  keeper  charge  a  fee  for  obtaining 
a  situation,  when  no  such  situation  was,  in  fact,  open,  unless 


OF  THE   UNITED   STATES  155 

service,  the  latter  to  general  employment.  There 
is  provision  in  a  few  states  for  the  regulation 
and  licensing  of  employment  agencies  and  intel- 
ligence offices,  usually  in  cities  only. 

he  refund  to  the  person  seeking  employment  his  fares  paid  in 
going  to  and  returning  from  the  place  of  the  supposed  situa- 
tion. The  keeper  must  give  a  receipt  for  any  fees,  stating 
the  amount,  and  the  character  of  the  employment  they  agree 
to  procure,  specifying  the  time  in  which  it  is  to  be  furnished, 
and,  in  case  of  failure  so  to  furnish  employment,  shall  re- 
fund the  full  amount  of  the  fee.  These  provisions  of  law 
must  be  printed  on  the  back  of  every  receipt  given  for  the 
fees.  And  for  any  breach  of  the  law  the  license  may  be  re- 
voked. The  mayor  issues  licenses  yearly,  and  may  require 
a  bond  for  the  faithful  observance  of  these  provisions. 

In  Missouri,  "  Every  person  who  shall  agree  or  promise, 
or  who  shall  advertise  through  the  public  press,  or  by  letter, 
to  furnish  employment  or  situations  to  any  person  or  persons, 
and,  in  pursuance  of  such  advertisement,  agreement,  or 
promise,  shall  receive  any  money,  personal  property,  or  other 
valuable  thing  whatsoever,  and  who  shall  fail  to  procure  for 
such  person  or  persons  acceptable  situations  or  employment 
within  the  time  stated,  or,  if  no  time  be  specified,  then 
within  a  reasonable  time  thereafter,  and  who  shall  fail  or 
refuse  to  return  the  money,  personal  property,  or  other  valu- 
able things  so  obtained,  when  the  same  shall  have  been  de- 
manded by  such  person  or  persons,  shall  be  guilty  of  a  mis- 
demeanor." 

And  in  Colorado,  if  any  person  keeping  an  intelligence 
office  gives  false  information,  or  makes  false  promises,  or 
charges  a  greater  sum  than  is  provided  for  in  the  city  ordi- 
nances, he  is  guilty  of  a  misdemeanor,  and  the  persons  in- 
jured by  such  false  representation  may  sue  upon  his  bond. 

State  employment  bureaus,  or  free  town  and  city  bureaus, 
have  recently  been  provided  in  a  few  states.  See  Mon.  Pol. 
C,  765. 


156        HANDBOOK   TO   THE   LABOR  LAW 


CHAPTEE  VI 

OTHER    LEGAL    RIGHTS    AND    LIABILITIES    OF    MAS- 
TER  AND  SERVANT 

§  48.  As  to  Third  Persons.— By  the  common 
law  the  master  or  employer  is  liable  to  third 
persons  for  any  acts  or  defaults  of  his  servant 
or  servants  causing  injury  to  such  third  persons 
for  which  they  might  recover  if  done  or  caused 
by  the  master  himself,  provided  only  that  such 
acts,  if  acts,  were  performed  by  the  servant  in  or 
about  the  execution  of  his  master's  business. 
The  common  law  in  this  particular  has  been  left 
untouched  by  modern  statutes  in  the  United 
States,  with  the  exception  that  the  states  have 
generally  passed  acts  extending  the  liability  of 
railroads  or  other  common  carriers  to  cases 
where  third  persons  have  been  killed  by  their 
negligence  or  default,  the  default  or  incompe- 
tency of  their  servants,  or  the  defective  nature 
of  their  machinery  or  appliances.  Recovery  in 
cases  of  death  is,  however,  frequently  limited  to 
five  thousand  dollars,  or  a  similar  sum,  and  it 
may  commonly  be  sued  for  by  the  executors, 
administrators,  or  widow  or  heirs  of  the  person 
deceased. 


OF  THE   UNITED   STATES  157 

§  49.  Liabilities  of  Servant  to  Master. — In  this 
particular  the  law  has  not  been  extended  iu 
modern  times,'  and  on  the  contrary  the  old  doc- 

'  The  new  western  codes  alone  attempt  to  define  the  com- 
mon law  on  this  point,  as  follows  : 

One  who,  for  a  good  consideration,  agrees  to  serve  another 
must  perform  the  service,  and  must  use  ordinary  care  and 
diligence  therein,  so  long  as  he  is  thus  employed. 

An  employee  must  substantially  comply  with  all  the  direc- 
tions of  his  employer  concerning  the  service  on  which  he  ia 
engaged,  except  where  such  obedience  is  impossible  or  un- 
lawful, or  would  impose  new  and  unreasonable  burdens  upon 
the  employee. 

An  employee  must  perform  his  service  in  conformity  to  the 
usage  of  the  place  of  performance,  unless  otherwise  directed 
by  his  employer,  or  unless  it  is  impracticable,  or  manifestly 
injurious  to  his  employer  to  do  so. 

An  employee  is  bound  to  exercise  a  reasonable  degree  of 
skill,  unless  his  employer  has  notice,  before  employing  him, 
of  his  want  of  skill. 

An  employee  is  always  bound  to  use  such  skill  as  he  pos- 
sesses, so  far  as  the  same  is  required,  for  the  service  speci- 
fied. 

Everything  which  an  employee  acquires  by  virtue  of  his 
employment,  except  the  compensation,  if  any,  which  is  due 
to  him  from  his  employers,  belongs  to  the  latter,  whether  ac- 
quired lawfhlly  or  unlawfully,  or  during  or  after  the  expira- 
tion of  the  term  of  his  employment. 

An  employee  muct,  on  demand,  reader  to  his  employer 
just  accounts  of  all  his  transactions  in  the  course  of  his  ser- 
vice, as  often  as  may  be  reasonable,  and  must,  without  de- 
mand, give  prompt  notice  to  his  employer  of  everything  which 
he  receives  for  his  account. 

An  employee  who  receives  anything  on  account  of  his  em- 
ployer, in  any  capacity  other  than  that  of  a  mere  servant,  is 


158         HANDBOOK    TO    THE    LABOR    LAW 

trine  of  petit  treason,  which  made  a  servant  in 
certain  cases   liable  to  extraordinary  penalties 

not  bound  to  deliver  it  to  him  until  demanded,  and  is  not  at 
liberty  to  send  it  to  him  from  a  distance,  without  demand,  in 
any  mode  involving  greater  risk  than  its  retention  by  the  em- 
ployee himself. 

An  employee  who  has  any  business  to  transact  on  his  own 
account,  similar  to  that  intrusted  to  him  by  his  employer, 
must  always  give  the  Latter  tlie  preference.  Cal.  Civ.  C, 
1978,  1981-1988;  Mon.  Civ.  C,  2()73,  2676-2683. 

An  employee  who  is  expressly  authorized  to  employ  a  sub- 
stitute is  liable  to  his  principal  only  for  want  of  ordinary  care 
in  his  selection.  The  substitute  is  directly  responsible  to  the 
principal. 

An  employee  who  is  guilty  of  a  culpable  degree  of  negli- 
gence is  liable  to  his  employer  for  the  damage  thereby  caused 
to  the  latter ;  and  the  employer  is  liable  to  him,  if  the  service 
is  not  gratuitous,  for  the  value  of  such  services  only  as  are 
properly  rendered. 

Where  service  is  to  be  rendered  by  two  or  more  persons 
jointly,  and  one  of  them  dies,  the  survivor  must  act  alone,  if 
the  service  to  be  rendered  is  such  as  he  can  rightly  perform 
without  the  aid  of  the  deceased  person,  but  not  otherwise. 
Cal.  Civ.  C,  1989-1991;  Mon.  Civ.  C,  2684-2686. 

Every  employment  in  which  the  power  of  the  employee  is 
not  coupled  with  an  interest  in  its  subject  is  terminated  by 
notice  to  him  of  : 

1.  The  death  of  the  employer;  or, 

2.  His  legal  incapacity  to  contract. 
Every  employment  is  terminated  : 

1 .  By  the  expiration  of  its  appointed  term ; 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee ;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 

An  employee,  unless  the  term  of  his  service  has  expired,  or 
unless  he  has  a  right  to  discontinue  it  at  any  time  without 


OF   THE   UNITED    STATES  159 

for  breach  of  faith  as  against  his  master,  has 
long  since  fallen  into  disuse.     It  is  sufficient, 

notice,  must  continue  his  service  after  notice  of  the  death 
or  incapacity  of  his  employer,  so  far  as  is  necessary  to  pro- 
tect from  serious  injury  the  interests  of  the  employer's  suc- 
cessor in  interest,  until  a  reasonable  time  after  notice  of  the 
facts  has  been  communicated  to  such  successor.  The  suc- 
cessor must  compensate  the  employee  for  such  service  ac- 
cording to  the  terms  of  the  contract  of  employment. 

An  employment  having  no  specified  term  may  be  termi- 
nated at  the  will  of  either  party,  on  notice  to  the  other, 
except  where  otherwise  provided  by  this  title. 

An  employment,  even  for  a  specified  term,  may  be  termi- 
nated at  any  time  by  the  employer,  in  case  of  any  wilful 
breach  of  duty  by  the  employee  in  the  course  of  his  employ- 
ment, or  in  case  of  his  habitual  neglect  of  his  duty  or  con- 
tinued incapacity  to  perform  it. 

An  employment,  even  for  a  specified  term,  may  be  termi- 
nated by  the  employee  at  any  time,  in  case  of  any  Avilful  or 
permanent  breach  of  the  obligations  of  his  employer  to  him 
as  an  employee. 

An  employee,  dismissed  by  his  employer  for  good  cause, 
is  not  entitled  to  any  compensation  for  services  rendered 
since  the  last  day  upon  which  a  payment  became  due  to  him 
under  the  contract. 

An  employee  who  quits  the  service  of  his  employer  for 
good  cause  is  entitled  to  such  proportion  of  the  compensation 
which  would  become  due  in  case  of  full  performance  as  the 
services  which  he  has  already  rendered  bear  to  the  services 
which  he  was  to  render  as  full  performance.  Cal.  Civ.  C, 
1996-2003;  Mon.  Civ.  C,  2700-2707. 

Master  and  Servant. 

A  servant  is  one  who  is  employed  to  render  personal  ser- 
vice to  his  employer,  otherwise  than  in  the  pursuit  of  an  in- 
dependent calling,  and  who  in  such  service  remains  entirely 


ICO         HANDBOOK   TO   THE   LABOR    LAW 

therefore,  to  state  that  a  servant  is  liable  to  his 
master,  or  au  employee  to  his  employer,  only  for 

under  the  control  and  direction  of  the  latter,  who  is  called 
his  muster. 

A  servant  is  presumed  to  have  been  hired  for  such  length 
of  time  as  the  parties  adopt  for  the  estimation  of  wages.  A 
hiring  at  a  yearly  rate  is  presumed  to  be  for  one  year ;  a  hir- 
ing at  a  daily  rate,  for  one  day ;  a  hiring  by  piecework,  for 
no  specified  term. 

In  the  absence  of  any  agreement  or  custom  as  to  the  term 
of  service,  the  time  of  payment,  or  rate  or  value  of  wages  a 
servant  is  presumed  to  be  hired  by  the  month,  at  a  monthly 
rate  of  reasonable  wages,  to  be  paid  when  the  service  is  per- 
formed. 

Where,  after  the  expiration  of  an  agreement  respecting  the 
wages  and  the  term  of  service,  the  parties  continue  the  rela- 
tion of  master  and  servant,  they  are  presumed  to  have  re- 
newed the  agreement  for  the  same  wages  and  term  of  service. 
Cal.  Civ.  C,  2009-2012;  Mon.  Civ.  C,  2720-2723, 

The  entire  time  of  a  domestic  servant  belongs  to  the  mas- 
ter ;  and  the  time  of  other  servants  to  such  an  extent  as  is 
usual  in  the  business  in  which  they  serve,  not  exceeding  in 
any  case  ten  hours  in  the  day. 

A  servant  must  deliver  to  his  master,  as  soon  as  with  rea- 
sonable diligence  he  can  find  him,  everything  that  he  receives 
for  his  account,  without  demand;  but  he  is  not  bound,  with- 
out orders  from  his  master,  to  send  anything  to  him  through 
another  person. 

A  master  may  discharge  any  servant,  other  than  an  ap- 
prentice, whether  engaged  for  a  fixed  term  or  not : 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  ser- 
vice, or  of  gross  immorality,  though  unconnected  with  the 
same;  or 

2.  If,  being  employed  about  the  person  of  the  master,  or  in 
a  confidential  position,  the  master  discovers  that  he  has  been 
guilty  of  misconduct,  before  or  after  the  commencement  of 


OF   THE   UNITED   STATES  161 

damages  caused  by  the  positive  act  or  neglect  of 
the  servant  or  employee.  For  such  damage  the 
master  or  employer  may,  of  course,  bring  suit 
against  the  employee ;  but  for  obvious  reasons 
this  is  rarely  done,  and  his  more  usual  remedy 
is  to  discharge  him.  A  discharge  for  such  cause 
may  commonly  be  made  without  notice  or 
warning  (see  §  22),  and  gives  no  rise  to  any 
action  by  the  servant  for  damages  unless  en- 
gaged by  a  time  contract.  And  in  such  cases,  if 
the  contract  be  that  the  work  is  to  be  done  to  the 
employer's  satisfaction,  or  a  similar  phrase  is 
used,  the  employer's  judgment  is  final  and  the 
employee  cannot  go  to  the  jury  on  the  question 
whether  it  was  warranted  by  the  facts. 

§  50.  Liabilities  of  Master  to  Servant. — These 
have  been  very  greatly  extended  by  statute  in 
the  various  states  of  the  United  States.  Under 
the  old  common-law  doctrine  an  employee  was 
held  to  take  both  the  risks  of  the  employment 
and  the  risks  of  any  injury  resulting  from  any 
act  or  neglect  of  any  servant  or  employee  em- 
ployed by  the  same  master.  In  this  particular 
the  law  has  been  very  commonly  changed  both 
by  court  decision  and  statute.  The  tendency  in 
the  United  States  has  been  to  hold  that  the  em- 

his  service,  of  such  a  nature  that,  if  the  master  had  known  or 
contemplated  it,  he  would  not  have  so  employed  him.     Cal. 
Civ.  C,  20G3-20G5;  Mon.  Civ.  C,  2724-2726. 
11 


102        HANDBOOK   TO   THE   LABOR   LAW 

ployee  does  not  assume  any  risks  which  might 
be  averted  by  the  gi-eatest  care  on  the  part  of  the 
employer  in  the  choice  and  construction  of  ma- 
chinery or  other  appliances,  and  in  the  selection 
of  other  agents  or  servants.  There  has  been  a 
very  general  attempt  to  abolish  the  "  fellow-ser- 
vant "  doctrine  entirely,  or  at  least  to  provide 
that  it  should  not  apply  except  to  cases  where 
the  fellow-servant  causing  the  accident  is  pre- 
cisely on  a  par  as  to  powers  and  function  with 
the  person  injured.  And  finally,  there  is  a  very 
general  statute  forbidding  employers  from  "  con- 
tracting out "  of  such  injuries ;  that  is,  from 
causing  the  employees  to  sign  a  contract  by 
which  they  agree  not  to  hold  the  employer  Uable 
for  accidents  occuiTing  while  they  are  in  his  em- 
ploy, or  occurring  by  reason  of  careless  fellow- 
servants  or  imperfect  machinery.  A  few  states, 
furthermore,  have  attempted  to  redefine  the  com- 
mon law  as  to  injuries  to  servants  and  employees 
while  in  the  employ  of  the  master.  Thus  in 
several  states  all  corporation  employers,  and  in 
other  states  all  employers,  are  made  liable  for  in- 
jury to  employees  caused  by  defects  and  condi- 
tion of  the  plant,  machinery,  etc.,  negligence  on 
the  part  of  the  corporation,  or  any  act  of  omis- 
sion on  its  part,  or  of  its  fellow-servants.^  Cali- 
fornia and   Montana,  which  have  adopted   the 

»  Mass.,  1894,  499 ;  Col.,  1893,  77  ;  Ind.,  7083  ;  Ala.,  2590. 


OF   THE    UNITED    STATES  163 

general  codes  prepared  by  the  late  David  Dud- 
ley Field,  of  New  York,  attempt  to  recast  the 
common  law  in  still  greater  detail.^ 

In  Massachusetts  an  action  is  given  to  the 
executors  or  personal  representatives  of  an  em- 
ployee against  the  employer  even  in  cases  of  his 
death,  as  if  he  had  not  been  an  employee  (see  § 
48),  and  for  damages  in  cases  where  such  death 
was  not  instantaneous  or  was  preceded  by  con- 
scious suffering.^ 

There  are  more  frequently  peculiar  statutes 
relating  to  injuries  on  railroads ;  thus  in  many 
states  railroads  are  liable  for  all  damages  sus- 
tained by  any  person,  including  employees,  in 


'  An  employer  must  indemnify  his  employee,  except  as  pre- 
scribed in  the  next  section,  for  all  that  he  necessarily  expends 
or  loses  in  direct  consequence  of  the  discharge  of  his  duties 
as  such,  or  of  his  obedience  to  the  directions  of  the  em- 
ployer, even  though  unlawful,  unless  the  employee,  at  the 
time  of  obeying  such  directions,  believed  them  to  be  unlaw- 
ful. 

An  employer  is  not  bound  to  indemnify  his  employee  for 
losses  suffered  by  the  latter  in  consequence  of  the  ordinary 
risks  of  the  business  in  which  he  is  employed,  nor  in  Califor- 
nia in  consequence  of  the  negligence  of  another  person  em- 
ployed by  the  same  employer  in  the  same  general  business, 
unless  he  has  neglected  to  use  ordinary  care  in  the  selection 
of  the  culpable  employee. 

An  employer  must  in  all  cases  indemnify  his  employees  for 
losses  caused  by  the  former's  want  of  ordinary  care.  (Cal., 
1969-1971)  ;  Mon.  Civ.  C,  2060-2. 

3  Mass.,  1894,  499.     See  also  Ala.,  2591. 


104         HANDBOOK    TO   THE    LA  HO  11    LAW 

consequence  of  neglect  or  mismanagement  on 
the  part  of  other  employees,  etc."* 

The  "  felloM-servaut  "  doctrine  is,  nioreover, 
specially  limited  in  a  few  states  in  peculiar  ways, 
as,  for  instance,  in  Colorado,  where  fellow-ser- 
vants or  employees  can  recover  compensation  for 
injuries  resulting  from  the  negligence  of  a  co- 
employee  to  the  extent  of  five  thousand  dollars.^ 

Principals,  vice-principals,  and  fellow-servants 
are  in  a  few  states  defined  and  made  into  sepa- 
rate classes,  so  that  the  employer  is  only  relieved 
from  liability  when  the  injury  is  caused  by  a 
fellow-servant  of  precisely  the  same  class  as  the 
servant.^  Rather  than  go  into  subtilities  of  this, 
it  would  seem  better  to  repeal  the  common  law 
liability  entirely,  as  the  states  ah-eady  mentioned 
have  generally  done.     Thus,  in  Ohio, 

"  In  all  actions  against  a  railroad  for  personal 
injury  or  death  of  an  employee  arising  from  the 
negligence  of  such  company  or  any  of  its  em- 
ployees, every  person  in  the  employ  of  such 
company  actually  having  power  or  authority 
to  direct  any  other  employee,  is  held  not  the 
fellow-servant,  but  the  superior  of  such  other 
employee,  and  is  not  the  fellow-servant  of  em- 
ployees of   any   other    branch   or    department 

*  lo.,  1307  ;  Kan.,  1251 ;  Ga.,  3036  ;  Fla.,  2346  ;  Mon.  Civ. 
C,  905  ;  Minn.,  1887,  13. 
'  Col.,  1893,  77. 
«  Tex.,  1891,  24. 


OF   THE   UNITED   STATES  165 

who  have  no  power  to  direct  or  control  in  their 
own  branch."  ' 

Contracting  Out. — And  the  provisions  enumer- 
ated above  are  very  generally  enforced  by  a  law 
providing  that  any  contract,  releasing  the  em- 
ployers from  their  liability  to  emi^loyees  in  the 
manner  above  prescribed  in  the  statutes  of  the 
several  States  respectively,  shall  be  null  and 
void.^  In  other  States  such  contracts  only  are 
declared  void  when  they  attempt  to  release  the 
employer  from  liability  for  personal  injuries 
which  result  from  the  negligence  of  the  employer 
or  other  persons  in  his  employ.^  As  this,  how- 
ever, seems  to  go  to  the  full  extent  of  the  com- 
mon law  the  two  conditions  would  seem  to  be 
much  the  same  thing ;  and  so  the  constitutions 
of  some  of  the  new  states  provide  that 

"It  shall  be  unlawful  for  any  person,  com- 
pany, or  corporation  to  require  of  its  servants 
or  employees  as  a  condition  of  their  employment, 
or  otherwise,  any  contract  or  agreement  where- 
by such  person,  company,  or  corporation  shall  be 
released  or  discharged  from  liability  or  responsi- 
bility, on  account  of  personal  injuries  received 
by  such  servants  or  employees,  while  in  service 

'  O.,  1890,  p.  149,  §3. 

"  O.,  1890,  p.  149  ;  Ind.,  7083 ;  Tex.,  1891,  24 ;  Wy.  Const., 
10,  4,  1891,  28  ;  Fla.,  234G  ;  but  in  Ohio  the  statute  applies 
to  railroads  only. 

9  Mass.,  1894,  508,  6  ;  Ala.,  2590  ;  Minn.,  1887,  13. 


166        HANDBOOK   TO   THE   LABOR   LAW 

of  sncli  person,  company,  or  corporation,  by 
reason  of  the  negligence  of  such  person,  com- 
pany, or  corporation,  or  the  agents  or  employees 
thereof,  and  such  contracts  shall  be  absolutely 
null  and  void."  ^° 


"  Col.  Const.,  15,  15 ;  Mon.  Const.,   15,  16  ;   P.   C,   923 ; 
Wy.  Const.,  Art.  XIX.,  Labor  Contracts. 


OF   THE   UNITED   STATES  167 


CHAPTEE  VII 

TRADES  UNIONS 

§  51.  Trades  Unions  Legalized — Under  the 
common  law  of  England  there  was  an  impres- 
sion, possibly  justified,  that  any  trades  union  or 
labor  combination  Avas  in  its  essence  unlawful. 
Under  the  old  English  statutes  the  rate  of  wages 
was  limited  by  law,  or  by  a  determination  of  a 
magistrate,  and  it  was  illegal  to  pay  a  higher 
rate,  still  more  to  combine  for  the  purpose  of 
extorting  a  higher  rate.  Upon  this  state  of  the 
statute  law,  the  celebrated  Journeymen  Tailors 
case,  which  will  be  more  fully  discussed  in  the 
next  chapter,  was  decided. 

Substantially,  however,  there  has  never  been 
any  legal  determination  of  rates  of  wages  in 
this  country.  What  few  efforts  of  the  kind  were 
made,  under  the  theocracies  of  some  of  the 
colonies,  notably  Massachusetts,  or  the  aristoc- 
racies of  others,  like  Virginia,  or  their  local 
town  councils  and  magistrates,  all  finished  with 
the  Revolution.  Since  then  it  has  never  been 
seriously  questioned  here  that  at  common  law 
a  trades  union,  that  is  the  combination  of  the 
members  of  a  trade  for   their   mutual   benefit. 


108         HANDBOOK    TO   THE   LABOR   LAW 

elevation,  and  protection,  was  perfectly  legal.' 
AVliile  the  general  corporation  acts  did  not  ex- 
pressly mention  such  associations,  they  could 
not,  of  course,  organize  as  corporations  or  joint 
stock  companies  ;  but  the  association,  regarded 
as  a  voluntary  association  for  whose  obligations 
each  member  might  become  liable,  was  always 
perfectly  legal  in  all  the  states  of  this  country, 
and  many  states  have  exj^ressly  taken  the  oppor- 
tunity to  authorize  such  associations  to  incor- 
porate themselves  under  the  general  corporation 
acts,  whereby  each  member  is  relieved,  or  par- 
tially relieved,  from  individual  liability.  Such 
corporations  are  usually  organized  under  the 
general  head  of  corporations  not  for  profit,  and 


'  Tliis  matter  will  be  more  fully  discussed  under  section  55 
and  below.  There  were  three  early  cases  iu  New  York  and 
Pennsylvania,  in  inferior  courts,  which  seemed  to  hold  that 
associations  of  workmen  to  raise  prices  to  a  certain  level  were 
illegal  in  themselves,  but  it  was  established  in  Pennsylvania 
as  early  as  1821,  in  Massachusetts  in  1842,  and  finally  by  a 
well-argued  case  in  New  York  in  1867,  which  carefully  re- 
views all  the  decisions,  that  such  is  not  the  case  in  this  coun- 
try. See  Commonwealth  v.  Carlisle,  Brightley's  Rep.,  36  ; 
Commonwealth  v.  Hunt,  4  ilet.,  Ill  ;  Stevedore's  Association 
T.  Walsh,  2  Daly,  1  ;  Snow  v.  Wheeler,  113  Mass.,  179. 

An  ordinary  trades  union  is,  of  course,  a  different  thing 
from  a  combination  to  effect  a  specific  purpose,  such  as  to 
raise  wages  (see  §  55),  or  to  force  the  employers  not  to  em- 
ploy certain  workmen  (see  §  57).  See  also  below  in  this 
section. 


OF  THE   UNITED   STATES  169 

having  no  capital  stock.     (For  the  organization 
of  corporations  with  capital,  compare  §  42.) 

The  statutes  of  most  of  the  states  expressly 
provide  for  the  incorporation  of  trades  unions 
generally,^  of  the  Knights  of  Labor,  of  the  Far- 

*  Thus,  the  Massachusetts  law  provides  that  seven  or  more 
persons  may  associate  themselves  to  form  a  corporation  for 
the  purpose  of  improving  in  any  lawful  manner  the  condition 
of  any  employees  in  any  lawful  trades  or  employments, 
either  in  respect  to  their  employment,  or  by  the  promotion  of 
education,  temperance,  morality,  or  social  intercourse,  by  the 
payment  of  benefits  to  members  if  sick  or  unemployed,  or  to 
persons  dependent  upon  deceased  members  or  otherwise. 

The  by-laws  must  contain  no  provision  contrary  to  the  law, 
and  the  commissioner  of  corporations  must  endorse  his  ap- 
proval upon  the  certificate  of  organization  when  satisfied  that 
the  agreement  shows  the  purpose  to  be  a  lawful  one  ;  and 
such  commissioner  may  call  for  the  opinion  of  the  attorney- 
general  thereon. 

The  by-laws  must  contain  clear  and  distinct  provisions  in 
respect  to  the  manner  of  electing  or  admitting  members,  of 
expelling  members ;  the  officers  of  the  corporation,  with 
tlieir  titles,  duties,  powers,  and  terms  ;  the  manner  of  elect- 
ing and  removing  them  ;  the  number  required  for  a  quorum  ; 
the  manner  of  calling  meetings,  rescinding  or  amending  by- 
laws ;  the  purposes  for  which  the  funds  of  the  corporation 
shall  be  applicable ;  the  purposes  for  which  assessments  may 
be  levied  ;  the  conditions  under  which  a  member,  or  persona 
dependent  upon  a  deceased  member,  shall  be  entitled  to  bene- 
fits, if  anj'  ;  the  manner  in  which  a  fine  or  forfeiture  can  be 
imposed,  if  any  ;  the  manner  in  which  the  funds  are  to  be 
held  or  invested,  and  the  accounts  of  the  treasurer  audited, 
and  the  manner  of  voting  upon  stock  to  be  issued. 

By-laws  of  such  corporation  can  only  be  made  or  amended 
at  a  special  meeting  after  notice,  and  when  approved  by  the 


170         HANDBOOK    TO   THE   LABOR   LAW 

mers'  Alliance  or  Grangers,  of  Knights  of  Labor 
building  societies,  of   workingmen's   aid  socie- 

coramiasioner  of  corporations.  No  member  can  be  expelled  by 
less  than  a  majority  vote  of  all  the  members,  nor  by  less  than 
a  thri-e-fourths  vote  of  the  members  voting.  Kvery  member 
is  entitled  to  examine  the  books  and  records  of  the  corpora- 
tion.    Mass.,  1888,  134. 

In  Michigan  any  number  of  persons,  not  less  than  five, 
may  associate  themselves  together  and  become  a  body  corpo- 
rate and  politic  for  the  improvement  of  their  several  social 
and  material  interests,  the  regulation  of  their  wages,  the 
laws  and  conditions  of  their  employment,  the  protection  of 
their  joint  and  individual  rights  in  the  prosecution  of  their 
trades  or  industrial  avocations,  the  collection'  and  payment 
of  funds  for  the  benefit  of  sick,  disabled,  or  unemployed 
members,  the  securing  of  benefits  to  the  families  of  deceased 
members,  and  for  such  other  and  further  objects  of  mate- 
rial l)enefit  and  protection  as  are  germane  to  the  purposes 
of  this  act. 

Such  associations  are  made  bodies  politic,  may  sue  or  be 
sued,  etc.,  may  hold  real  or  personal  property,  as  shall  be 
required  for  their  corporate  purposes,  may  make  all  needful 
by-laws,  establish  a  uniform  system  of  dues,  assessments,  or 
benefits.     Mich.,  1885,  145. 

In  Maryland  corporations  may  be  formed  by  any  five  per- 
sons, citizens  of  the  United  States,  and  a  majority  citizens  of 
that  state,  or  if  unnaturalized,  residents  of  that  state,  making 
oath  that  they  intend  to  become  citizens  of  the  United  States, 
for  the  creation  and  maintenance  of  mechanics'  institutes,  co- 
operative stores,  or  societies,  provided  such  corporations  are 
located  in  the  state,  and  the  property  they  possess  is  located 
therein ;  and  also  for  the  formation  of  trades  unions,  "  to  pro- 
mote the  well-being  of  their  every-day  life,  and  for  mutual 
assistance  in  securing  the  most  favorable  conditions  for  the 
labor  of  their  members,  and  as  beneficial  societies."  Md. 
23,  §§  14,  15,  and  37. 


OF   THE   UNITED   STATES  171 

ties,  and  many  other  specified  organizations. 
And  other  states  have  a  general  provision. 

Legal  unions  may  fully  enforce  their  by-laws, 
penalties,  etc.,  against  their  members  ;  and  these 
latter  have  the  ordinary  legal  remedies  for  ex- 
pulsion, etc.,  against  the  union.-^ 

A  mandamus  will  commonl}-  lie  for  a  member 
of  a  labor  union  who  has  been  improperly  ex- 
pelled from  the  same,  to  reinstate  him  to  mem- 
bership ;  and  damages  Avill  be  awarded  for  loss 
suffered  in  consequence  of  his  expulsion,  as 
when  he  was  by  reason  thereof  discharged  from 
employment  or  unable  to  procure  it.^  So,  in  a 
New  York  case,  the  plaintiff,  a  member  of  a  la- 
bor union,  brought  suit  for  damages  for  im- 
proper expulsion  therefrom,  which  were  awarded 
him  ;  and  he  also,  it  appears,  got  a  mandamus  for 

In  Iowa,  trades  unions  and  other  organizations  of  labor,  for 
the  regulation,  by  lawful  means,  of  prices  of  labor,  of  hours' 
work,  and  other  matters  pertaining  to  industrial  pursuits,  may 
become  incorporated  in  the  manner  directed  in  the  preceding 
chapter,  so  far  as  applicable,  and  shall  thereby  become  vest- 
ed with  all  the  powers  and  privileges,  and  subject  to  all  the 
liabilities  provided  by  that  chapter,  except  as  herein  modified 
(§  1649). 

And  by  the  United  States  law  (1886,  Ch.  567)  national 
trades  unions  may  be  incorporated  for  similar  purposes,  pro- 
vided they  have  two  or  more  branches  in  the  several  states, 
with  headquarters  located  in  the  District  of  Columbia. 

^Master  Stevedores  v.  Walsh,  2  Daly,  1. 

*  People  7'.  Musical  Mutual  Protective  Union,  IISN.  Y., 
101  ;  People  i'.  Coachmen's  Union,  24  N.  Y.  S..  114. 


172         IIAXDROOK    TO    THE    LAHOR   LAW 

reinstatement  as  a  member  of  the  union.  Evi- 
dence of  the  diminution  in  bis  earnings  caused 
by  his  expulsion  from  the  union  was  allowed, 
and  he  was  given  compensation  for  the  loss  ap- 
proximately i-esulting  from  his  expulsion.' 

Labor  Combinations  other  than  Ordinary 
Trades  Unions  or  Associations  for  Enforcing 
Strikes  or  Boycotts. — The  matter  of  strikes  and 
boycotts  Avill  be  discussed  later  in  Sections  55 
and  57,  respectively.  We  have  now  to  consider 
labor  combinations  which  have  some  other  pur- 
pose, and  which  endeavor  to  enforce  such  pur- 
pose by  penalties  or  otherwise.  In  the  early 
part  of  this  century  all  such  combinations  were 
illegal  in  England,  but  have  since  been  fully  le- 
galized by  statute.  The  2d  and  3d  of  Edward 
VI.,  Chapter  15,  passed  in  1548,  forbade  "  all 
conspiracies  and  covenants  of  workmen  not  to 
make  or  do  their  work  but  at  a  certain  rate  or 
price."  In  1721  the  statute  of  7  George  I., 
Chapter  13,  was  passed,  which  punished  by  im- 
prisonment agi'eements  between  tailors  for  ad- 
vancing their  wages  or  lessening  their  hours  of 
work.     The  statute  also  fixed  the  rate  of  wages, 

'  Merschiem  v.  Musical  Mutual  Protective  Union,  24  Ab- 
bott, N.  C,  252.  See  valuable  note  by  John  H.  Wigmore, 
in  21  Am.  Law  Rev.,  showing  that  a  man  may  have  an  action 
for  damages  if  his  customers  are  intimidated  from  trading 
with  him,  and  note  by  Austin  Abbott,  24  Abb.,  N.  C,  p. 
262. 


OF     THE   UNITP:D   STATES  173 

and  similar  statutes  were  extended  to  oth- 
er trades.  Again,  in  1796,  Cliaj)ter  3  of  36 
George  III.  made  provision  for  suppressing 
combinations  among  workmen  for  raising  their 
wages,  and  in  1799,  39  and  40  George  III., 
Chapter  81,  this  was  repeated  in  the  so-called 
Combination  Laws  designed  to  suppress  all 
combinations  of  workmen  to  raise  wages.  All 
contracts  for  shortening  hoiu*s  or  obtaining  an 
advance  of  wages,  except  between  a  single  jour- 
neyman and  his  master,  were  punished  by  three 
months  imj^risonment.  This  statute,  perhaps, 
marks  the  culmination  of  adverse  legislation 
upon  this  subject ;  ®  it  Avas,  however,  repealed 
in  the  following  year.'  But  this  latter  act  still 
made  it  criminal  for  any  person  to  attend  a 
meeting  held  for  the  purpose  of  making  or  en- 
tering into  any  contract  or  agreement  declared 
illegal  by  the  act,  or  for  entering  into,  or  con- 
spiring, or  maintaining  any  combination  for 
any  purpose  declared  illegal  by  the  act,  or  to 
give  notice,  or  call  ujion,  or  persuade  by  intimi- 
dation or  any  other  means,  any  workman  or  other 
person  to  attend  such  meeting,  or  to  collect  any 
money  for  such  purpose,  etc.  This  is  probably 
the  most  drastic  statute  that  was  ever  passed  in 
the  direction  of  confirming  and  extending  the 


*  See  Publications  American  Academy  of  Political  Science, 
No.  123,  "  Peaceable  Boycotts,"  by  Chester  A.  Reed. 
'  See  40  George  III.,  Chapter  106. 


174         HANDBOOK    TO   THE   LABOR    LAW 

principle  of  the  Journeymen  Tailors  case,  but  it 
ouly  lield  its  place  on  the  statute  book  twenty- 
five  years.  Other  of  its  provisions  will  be  fur- 
ther discussed  in  §  57,  when  we  are  considering 
boycotts.  But  in  1824,  5  George  IV.,  Chapter 
99,  was  passed,  which  began  the  modern  view  in 
England.  It  pro\dded  that  no  workman  enter- 
ing into  a  combination  to  advance  wages  or 
lessen  working  time,  or  to  induce  another  to 
depart  from  his  service  before  the  time  for 
which  he  is  hired,  or  to  refuse  to  enter  into 
■work,  or  to  regulate  the  mode  of  carrying  on 
any  manufacture,  trade,  or  business,  should  be 
subject  to  prosecution  for  conspiracy  or  any 
criminal  punishment.  This  radical  statute  was 
repealed  the  foUo^ving  year  (6  George  IV., 
Chapter  129),  but  the  repealing  act  still  pro- 
vided that  no  persons  should  be  subject  to 
punishment  who  meet  together  for  the  sole 
purpose  of  determining  the  rate  of  wages  which 
they  shall  demand  or  the  hours  which  they  shall 
work,  or  who  enter  into  an  agreement  among 
themselves  for  the  purpose  of  fixing  the  wages 
or  prices  which  the  parties  entering  into  such 
agreement  shall  demand,  or  the  hours  during 
which  they  shall  work.  The  subsequent  sec- 
tions of  the  act  related  to  intimidation,  and 
forbade  the  forcing  of  employees  to  enter  into 
such  associations,  or  the  coercing  employers  to 
make  any  alteration  in  their  mode  of  business 


OF   THE    UNITED    STATES  175 

or  regulate  their  mode  of  carrying  it  out,  or 
otherwise  molesting  them.  It  is  now  easy  to  see 
why  the  early  American  cases,  folloAving  English 
cases  based  upon  such  statutes,  and  in  particu- 
lar the  Journeymen  Tailors  case,  decided  as  they 
did.  Nevertheless  they  were  probably,  on  that 
point,  ill-decided,  and  have  long  since  been  over- 
iniled.  But  it  is  important  to  notice  the  distinc- 
tion, well  taken  in  Master  Stevedores  v.  Walsh, 
above  cited,  between  the  legality  of  such  trade 
combinations  which  only  seek  to  control  their 
own  members  in  their  own  action  and  impose 
penalties  upon  them  alone,  and  combinations 
which  seek  to  control  the  employer,  in  the  man- 
agement of  his  business,  or  other  workmen. 
These  latter  combinations  would  nearly  always 
come  under  the  head  of  boycotting ;  and  in  so 
far  as  the  early  American  cases  dealt  with  com- 
binations of  this  sort,  the  cases  are  still  of  some 
authority.  They  held  substantially  that  a  com- 
bination of  journeymen  to  prevent  any  journey- 
men from  working  below  certain  rates,  or  to 
prevent  master  workmen  from  employing  any- 
one except  at  certain  rates,  or  who  was  not  a 
member  of  their  union,  was  unlawful,  and  that 
the  parties  taking  part  might  be  indicted  for 
conspiracy.  But  at  that  time  a  combination 
among  laborers  to  raise  wages  was  in  itself  a 
criminal  conspiracy  in  England  (see  §  55),  and 
the  first  case  therefore  also  held  such  a  combi- 


176  HANDBOOK    TO   THE    LABOR   LAW 

nation  indictable  ;  and  this  is  not  now  the  law. 
The  cases  are  as  follows  : 

Boot  and  Shoemakers  of  Philadelphia  (pam- 
phlet specially  printed),  1806. 

People  V.  Melviu,  2  Wheeler  Criminal  Cases 
(N.  Y.),  262. 

Journeymen  Cordwainers  of  Pittsburg,  pam- 
phlet (1811). 

People  V.  Fisher,  14  Wendell,  1  (N.  Y.,  1835). 

This  last  was  a  case  where  a  combination  of 
joui'neymen  shoemakers  in  the  village  of  Geneva, 
for  the  purpose  of  preventing  any  shoemaker 
within  or  without  the  combination  in  the  village 
from  working  below  certain  rates  under  penalty 
of  fine,  and  with  mutual  agreement  that  they 
would  not  work  for  any  master  who  should  em- 
ploy a  journeyman  who  infringed  their  rules, 
was  declared  a  criminal  conspiracy.  The  only 
statute  then  existing  was  one  declaring  conspir- 
acies to  commit  any  act  injurious  to  trade  or 
commerce  a  misdemeanor.^ 

It  is  doubtful  whether  any  of  the  above  cases 
really  embody  the  principle  that  a  combination 
of  laborers  among  themselves,  and  aimed  only 
at  controlling  their  own  action,  is  illegal;  but  in 
so  far  as  they  do  take  that  view,  following  the 
Journeymen  Tailors  case,  they  have  been  over- 
ruled by  the  cases  cited  in  note  1  above.     And 

8  2  N.  Y.  R.  S.,  2d  ed.,  Vol.  II.,  p.  577. 


OF   THE   UNITED   STATES  177 

the  case  of  the  Master  Stevedore  Association  v. 
Walsh  expressly  affirmed  the  legality  of  a  com- 
bination of  stevedores  and  of  a  by-law  regulat- 
ing the  prices  for  which  they  should  work,  and 
another  imposing  a  fine  of  twenty-five  per  cent. 
of  the  amount  earned  against  any  member  who 
should  be  found  guilty  of  working  for  less. 
Suit  was  brought  by  the  corporation  against  the 
defendant  for  such  a  fine,  and  the  demurrer  to 
the  suit  was  overruled. 

We  therefore  conclude  that  in  the  United 
States  combinations  of  laborers  or  employers,  in 
their  collective  capacity  to  fix  wages  or  make 
other  rules  binding  among  themselves,  are  legal. 
(For  such  combinations  as  are  illegal,  as  where 
the  object  is  to  molest  or  obstruct  workmen  or 
coerce  employers  or  other  persons,  see  §  55, 
Strikes  ;  §§  57-59,  Boycotts.) 

For  it  has  never  been  the  common  law  in  this 
country  that  a  mutual  agreement  amoug  journey- 
men for  the  purpose  of  raising  their  wages  is  an 
indictable  offence,  or  that  they  are  guilty  of  a 
conspiracy  if  by  preconcert  and  arrangement  they 
refuse  to  work  unless  they  receive  an  advance  in 
wages.  (See  §  55,  Strikes.)  It  is  lawful  for  any 
number  of  journeymen  to  agree  that  they  will 
not  work  below  certain  rates,  or  for  masters  that 
they  will  not  pay  above  certain  prices  ;  and  only 
combinations  for  the  purpose  of  compelling 
journeymen  or  employers  to  conform  to  any  rule 
12 


178         JIANDBOOK    TO   THE    LABOR    LAW 

or  agreemeut  to  which  they  are  not  parties,  by 
the  imposition  of  penalties,  by  boycotting,  or  by 
the  threat  of  strikes,  is  an  unhiwful  conspiracy. 
These  are  substantially  the  words  of  Judge  Daly 
in  the  New  York  case,  and  they  seem  to  express 
the  American  law.^  And  a  society  of  Knights 
of  St.  Crispin,  organized  "  to  resist  encroach- 
ments of  the  masters,"  and  having  a  by-law  for- 
bidding any  member  to  teach  the  trade  without 
consent  of  the  society — "  there  being  no  unlaw- 
ful coercion  to  control  the  freedom  of  the  indi- 
vidual "- — is  lawful.'" 

Nevertheless  there  are  some  recent  start- 
ling decisions  the  other  way  in  the  courts  of  a 
few  states,  even  in  the  case  of  employees'  com- 
binations ;  while  in  the  case  of  employers,  or 
manufacturers  of  articles,  the  tendency  of  Amer- 
ican courts  has  been  almost  universall}'  to  pro- 
hibit combinations  to  limit  price.  All  these 
decisions  rest  not  on  the  law  of  labor  combina- 
tions, but  on  the  old  common-law  principles  of 
combinations  in  restraint  of  trade  ;  and  this  ten- 
dency of  the  courts  has  been  much  accelerated 
in  the  United  States  by  the  popular  prejudice 

"  Among  cases  since  the  decision  of  Commonwealth  v.  Car- 
lisle which  further  confirm  the  view  stated  in  the  text,  see 
also  JournejTnen  Tailors  of  Phila.,  pph.,  1827  (copied  ia 
Cogley  on  Strikes,  p.  70).  Hartford  Carpet  Weavers  case, 
pph.,  1836. 

'°Snow^•.  Wheeler,  113  Mass.,  179. 


OF   THE   UNITED   STATES  179 

against  trusts,  and  by  the  numerous  and  radical 
statutes  which  have  been  enacted  making  all 
trusts  or  trade  combinations  illegal  (see  §  54). 
The  result  is  that,  while  the  American  courts 
generally  have  a  tendency  to  destroy  combina- 
tions among  employers,  many  of  them  have  an 
equally  strong  tendency  to  uphold  combinations 
among  employees ;  and  when  based  upon  the 
vague  principle  of  restraint  of  trade,  as  there  is 
frequently  no  radical  difference  between  the 
case  of  employers  and  employees,  their  decisions 
become  irreconcilable.  For  instance,  in  1892, 
the  Supreme  Court  of  Illinois  held  that  "  an 
association  of  stenographers,  formed  to  establish 
and  maintain  uniform  rates  of  charges,  and  to 
prevent  competition  among  its  members  under 
certain  penalties,  is  illegal,  as  in  restraint  of 
trade  and  against  public  policy,  and  one  member 
cannot  maintain  an  action  against  another  for 
damages  occasioned  by  the  latter  underbidding 
the  former,  in  violation  of  the  rules  of  the  asso- 
ciation." "  Now,  this  was  a  clear  case  of  a  com- 
bination among  employees.  The  sole  article  the 
parties  entering  into  the  combination  had  to  sell 
was  labor,  and  the  fact  that  the  labor  was  of  a 
skilled  nature  makes,  of  course,  no  difference. 
The  only  cases  cited  in  the  opinion  were  cases  of 
a  combination  among  producers  of  commodities. 

"  More  V.  Bennett,  29.  N.  E.  Rep.  888. 


180         HANDBOOK    TO    THE    LABOR    LAW 

If  we  are  (and  such  is  the  general  American  law 
to-day)  to  take  a  distinction  between  combi- 
nations of  producers  to  fix  prices  of  commodities, 
and  combinations  of  employers  and  employees 
to  fix  wages  of  labor,  and  hold  the  latter  legal 
while  the  former  are  not,  the  Illinois  case  must  be 
held  bad  law  ;  though  a  distinction  cannot  fairly 
be  taken  between  employers'  combinations  and 
employees'  combinations,  as  what  is  legal  for  one 
should  be  legal  for  the  other.  In  3Iore  v.  Ben- 
nett there  w^as  no  boycott,  no  unlawful  conspir- 
acy, nothing  but  an  association  of  a  portion  of 
the  stenographers  in  Chicago  to  Avork  at  certain 
rates,  a  rule  of  their  society  imposing  a  penalty 
for  non-conformity  with  such  rates,  and  the  at- 
tempt of  certain  members  of  the  society,  or  the 
society  itself  (for  the  court  expressly  say  that 
they  will  take  no  exception  to  this  point,  but 
Avill  admit  that  there  was  a  valid  contractual 
relation)  to  enforce  said  rule  by  recovering  dam- 
ages from  its  own  members.  We  do  not  see, 
therefore,  how  this  decision  can  be  sustained. 

And  finally,  there  are  in  a  few  states,  statutes 
on  this  subject.^2 

"In  New  York  (P.  C,  §  170)  .  .  .  "the  orderly  and 
peaceable  assembling  or  co-operation  of  persons  employed  in 
any  calling,  trade,  or  handicraft,  for  the  purpose  of  obtaining 
an  advance  in  the  rate  of  wages  or  compensation,  or  of  main- 
taining such  rate,  is  not  a  conspiracy." 

And  so,  by  a  New  Jersey  statute,  it  is  not  unlawful  for  any 


OF  THE   UNITED   STATES  181 

§  52.  The  Legal  Protection  of  Labor  Unions 

Besides  the  authority  to  incorporate  referred  to 
in  the  last  section,  there  is  a  statute  being  very 
rapidly  adopted  throughout  the  states,  making 
it  a  misdemeanor  for  any  employer  to  discharge 
employees  for  joining  labor  unions,'  or  even  to 
exact  pledges  from  employees,  or  making  a  con- 
tract not  to  join  any  union,  as  a  condition  or 
preliminary  to  employment.^ 

Massachusetts  has  a  saving  provision,  how- 
two  or  more  persons  to  unite,  combine,  or  bind  themselves  by 
oath,  covenant,  agreement,  alliance  or  otherwise,  to  persuade, 
advise,  or  encourage,  by  peaceable  means,  any  person  or  per- 
sons to  enter  into  any  combination  for  or  against  leaving  or  en- 
tering into  the  emploj'ment  of  any  person,  persons,  or  corpo- 
ration :  N.  J.  Sup.,  p.  774,  §  30;  which  statute  is  re-enacted  in 
Colorado  with  the  following  addition  :  that  such  combinations 
are  further  not  illegal  when  "in  relation  to  the  amount  of 
wages  or  compensation  to  be  paid  for  labor,  or  for  the  pur- 
pose of  regulating  the  hours  of  labor,  or  for  the  procuring  of 
fair  and  just  treatment  for  employees,  or  for  the  purpose  of 
aiding  and  protecting  their  welfare  and  interests  in  any  other 
manner  not  in  violation  of  the  constitution  of  tiiis  state  or 
the  laws  made  in  pursuance  thereof:  Provided^  That  this  act 
shall  not  be  so  construed  as  to  permit  two  or  more  persons, 
by  threats  of  either  bodily  or  financial  injury,  or  by  any  dis- 
play of  force,  to  prevent  or  intimidate  any  other  person  from 
continuing  in  such  employment  as  he  may  see  fit,  or  to  boy- 
cott or  intimidate  any  employer  of  labor." — Col.,  1889,  p.  92. 
'  Ind.,   1893,  76  ;  111.,   1893,  98;  O.,  1892,  p.  269  ;    Mass., 

1894,  508,  3  ;  N.  Y.  P.  C,  171a  ;  N.  J.,   1894,  212,  2  ;  "Wis., 

1895,  240,  4  ;  Cal.,  1893,  p.  149  ;  Mo.,  1893,  p.  187  ;  Ida., 
1893,  p.  152. 

'N.  Y.,  N.  J.,  Ind.,  Mass.,  Wis.,  Mo.,  Ida. 


182        HANDBOOK    TO   THE   LABOR   LAW 

ever,  that  no  organization  shall  be  considered  a 
labor  union,  within  the  meaning  of  this  act, 
■whose  officers,  agents,  or  members  seek  directly 
or  indirectly  to  accomplish  its  objects  or  pur- 
poses by  intimidation  or  force,  or  other  unlaw- 
ful means.^ 

The  constitutionality  of  the  above  statutes  is 
very  seriously  open  to  question.  It  has  been 
expressly  held  during  this  last  summer,  by  the 
Supreme  Court  of  Missouri,  that  such  a  law  was 
unconstitutional/  It  is  possible  that  while  em- 
ployees are  under  a  definite  contract,  a  discharge 
before  the  legal  term  of  the  contract  for  cause  of 
joining  a  labor  union  might  be  forbidden  by 
statute,  and  the  statute  not  set  aside  by  the 
courts  ;  but  to  prohibit  an  employer  from  choos- 
ing to  employ  laborers  who  are  not  union  men 
on  the  condition  express  or  implied  that  they 
remain  so,  or  to  forbid  him  to  end  a  contract 
terminable  at  his  pleasure  whenever  he  choose, 
is  the  clearest  sort  of  interference  with  individ- 
ual liberty,  and  cannot  possibly  come  under  the 
exception  of  the  police  power.  In  Massachu- 
setts alone  may  possibly  these  statutes  be  main- 
tained. The  other  states  are  more  likely  to  fol- 
low the  rule  of  Missouri  and  hold  all  such  laws 
void.^ 

'  Mass.,  1894,  437.  *  State  v.  Julow  31  S.  W.,  781. 

'Davis  V.  Ohio,  30  Wkly.  L.  B.,  342,  to  the  contrary,  was 

decided  with  little  argument  and  in  an  inferior  court  ;  never- 


OF  THE  UNITED  STATES       183 

Laborers  and  laborers'  unions  have  an  entire 
right  to  seek  to  compel  employers  to  deal  solely 
with  union  men  by  all  proper  means — as  by 
persuasion  or  even  by  a  properly  conducted 
strike  ;  ^  but  when  they  seek  to  impose  such  com- 
pulsion upon  the  employer  through  the  hand  of 
the  state,  still  more  when  so  doing  is  made  a 
crime,  the  law  effecting  this  result,  though 
passed  by  a  majority,  is  none  the  less  a  tyranny 
in  a  free  country.' 


theless,  so  long  as  it  stands,  it  renders  the  Ohio  statute  con- 
stitutional. The  Missouri  case,  decided  June  18,  1895,  held 
expressly  that  such  a  statute  was  an  interference  with  liberty 
of  contract,  and  was  also  class  legislation.     See  §  11. 

'  Thus  in  Johnson  Harvester  Co.  v.  Meinhardt,  60  How. 
Pr.,  163,  an  injunction  against  members  of  a  labor  union 
for  enticing  workmen  in  the  employ  of  plaintiff  to  leave  work 
was  refused. 

'  So  in  Piatt  v.  P.  &  R.  R.  R.  Co.,  65  F.  R.,  660,  the  court 
held  that  the  receivers  of  a  railroad  i  though  officers  of  a 
federal  court,  had  a  perfect  right  to  discharge  all  union  em- 
ployees if  tliey  chose.  Judge  Roberts,  in  the  case  of  the 
Pittsburg  Cordwainers  (Cogley,  p.  65),  said  : 

"  A  conspiracy  to  compel  an  employer  to  have  only  a  cer- 
tain description  of  persons  is  indictable.  It  is  a  subversion 
of  the  liberty  of  the  citizen.  It  has  a  direct  tendency  to  re- 
strain trade  and  create  a  monopoly.  A  conspiracy  to  pre- 
vent a  man  from  freely  exercising  his  trade  or  profession,  in 
a  particular  place,  is  indictable."  To  the  same  effect  see 
People  V.  Hughes ;  Ray,  Contractual  Limitations,  p.  356.  The 
case  of  State  v.  Stewart  (see  b=|  57),  also  hold  that  a  combina- 
tion to  prevent  an  employer  from  employing  non-union  men 
by  threats  of  insult,  etc..  was  a  criminal  conspiracy. 


184         HANDBOOK    TO   THE    LABOR   LAW 

§  53.  Union  Labels. — Under  the  earlier  deci- 
sions in  the  United  States  it  was  held  that  a 
label  or  trade-mark  adopted  by  a  labor  union 
could  not  be  protected  by  injunction  or  suit  for 
damages  in  courts,  for  the  reason  that  the 
laborers  employing  such  label,  being  merely 
laborers,  had  no  property  right  in  the  results  of 
their  labor,  and  consequently  suffered  no  finan- 
cial injury  from  the  counterfeiting  of  their  trade- 
mark.^ To  meet  these  cases  the  statute  has  very 
generally  been  passed  allowing  members  of  trades 
unions,  or  labor  unions,  or  associated  laborers 
in  any  shop  or  class,  to  adopt  labels  or  trade- 
marks to  be  used  solely  to  designate  the  prod- 
ucts of  their  own  labor,  or  of  the  labor  of  mem- 
bers of  their  own  trades  unions  or  labor  unions 
in  alliance  with  them  ;  and  provision  is  usually 
made  for  the  registration  of  such  label  or  trade- 
mark in  the  office  of  the  secretary  of  state,  and 
a  penalty  imposed  for  counterfeiting  it ;  '^  and  in 

'  Cigar-makers'  Union  v.  Conhaira,  40  Minn.,  243  ;  Cigar- 
makers'  Union  v.  Brendel,  22  AtL,  912  ;  McVey  v.  Brendel, 
144  Pa.,  235  ;  Weener  v.  Brayton,  152  Mass.,  101.  But  see 
contra,  Strasser  v.  Moonelis,  108  N.  Y.,  611  ;  People  v. 
Fisher,  50  Hun.,  552  ;  Carson  v.  Ury,  39  F.  R.,  777. 

=  N.  H.,  1895,  442;  Mass.,  1895,  462;  Me.,  1893,  276  ;  Ct., 
1893,  162  ;  N.  Y.,  1895,  206  ;  N.  J.,  1895,  123  ;  Pa.,  1895, 
68  ;  O.,  1890,  p.  141 ;  Ind.,  1893,  40  ;  HL,  1891,  p.  202  ; 
Mich.,  1895,  206;  Wis.,  1893,  104;  1895,  151;  lo.,  1892, 
36  ;  Minn.,  1889,  9  ;  Kan.,  1891,  213  ;  S.  D.,  1890,  153  ;  Md., 
1892,  257  ;  Neb.,  2083  ;  Del.,  1893,  699  ;  Ky.,  1894,  46  ;  Cal. 


OF   THE   UNITED   STATES  185 

most  of  the  above-mentioned  states  remedies 
by  injunction  or  equity  process  are  expressly 
given  the  laborers  or  the  labor  union  against  the 
infringement  of  their  trade-mark  or  label,  or  un- 
authorized use  of  such  trade -mark  by  other 
persons.^  In  fact,  the  Kentucky  statute  pro- 
vides that  such  union  labels  shall  not  be  assign- 
able at  all. 

Such  statutes  are  constitutional,  and  are  not 
class  legislation/  And  it  has  further  been  held 
in  Illinois,  and  denied  in  Pennsylvania,  that  a 
label  declaring  union-made  cigars  to  "  have  been 
made  by  a  first-class  workman,  a  member  of 
.  .  an  organization  opposed  to  inferior, 
rat-shop,  coolie,  prison,  or  filthy  tenement- 
house  workmanship,"  is  not  illegal  as  being  im- 
moral or  against  public  policy  within  the  mean- 
ing of  the  law  of  trade-marks.^ 

§  54.  Combinations  among  Employers. — Just 
as  the  common-law  illegality  of  combinations  to 
raise  wages  affected  in  the  old  cases  the  law  of 
trades  unions,  so  the  common-law  illegality  of 


Pol.  C,  3200 ;  Uta.,  1894,  46  ;  Ga.,  1893,  p.  134  ;  Tex., 
1895,  81. 

>  Pa.,  Minn.,  Ky.,  Cal.,  S.  D.,  Uta.,  Wis.,  Tex. 

♦  Cohn  V.  People,  37  N.  E.,  GO  ;  State  v.  Bishop,  31  S.  W., 
9. 

'  Cohn  V.  People,  and  Cigar-makers'  Union  v.  Brendle, 
above.     Browne  on  Trade-marks,  §  602. 


18G        HANDBOOK    TO   THE   LABOR   LAW 

combinations  in  restraint  of  trade  affected  that 
of  emplo3'ors'  unions.  In  neither  case  does  this 
illegality  now  generally  snrvive,  except  in  so  far 
as  in  the  latter  it  is  preserved  by  express  statutes 
like  the  Anti-Trust  act ;  and  in  the  former  it 
has  been  expressly  done  away  with  by  statute 
in  England.  (See  §§  51,  55,  and  57,  and  for  the 
result  of  the  United  States  law  against  Trusts, 
see  §  66.) 

Thus,  in  an  anonymous  case  '  decided  in  1698, 
an  indictment  was  sustained  against  several 
bucket-makers  for  combining  by  covenants  not 
to  sell  under  a  set  rate ;  the  chief  justice  (Holt) 
declaring  "it  is  fit  that  all  confederacies  by 
those  of  a  trade  to  raise  their  rates  should  be 
suppressed  ;  "  and  there  can  be  little  doubt  that 
the  conspiracy  to  raise  the  price  of  an  article 
was  illegal  at  common  law.  And  we  find  this 
doctrine  still  surviving  as  late  as  1855,  when  the 
English  court  of  Queen's  Bench  held  that  a 
bond  signed  by  eighteen  employers  to  conduct 
their  business  as  to  rates  of  wages  and  times  of 
work,  etc.,  in  conformity  with  a  resolution  of  a 
majority  of  them,  was  null  and  void  at  common 
law,  as  being  a  combination  in  restraint  of  trade." 
But  all  such  combinations,  both  by  employers 
and  employees,  have  in  England  been  legalized 


•  12  Mod.  R.,  248. 

»  Hilton  V.  Eckersley,  6  El.  &  Bl.,  47. 


OF   THE   UNITED    STATES  187 

by  statute  ;  and  in  this  country  the  law  to-day 
probably  is  that  any  combination,  short  of  an 
attempt  to  create  a  monopoly  in  a  necessity  of 
life,  which  is  entered  into  by  employers  merely 
for  their  own  protection  or  to  secure  a  larger 
share  of  the  business,  is  not  an  unlawful  conspi- 
racy, unless  it  amounts  to  an  actual  boycott  of 
some  person  or  persons,  or  to  an  infringement 
of  the  anti-trust  law  of  1890,  or  similar  anti- 
trust laws  in  the  several  states.^  These  anti- 
trust laws  have  been  adopted  in  more  than  half 
the  states,  and  are  generally  aimed  against  the 
combination  of  dealers  or  manufacturers  to  fix 
the  prices  of  a  commodity,  or  to  limit  the  out- 
put, not  to  fix  the  rates  of  labor.  Indeed,  all 
labor  combinations  are  in  some  states  expressly 
excepted  from  the  restrictions  of  the  anti-trust 
act ;  ^  and  so,  in  others,  combinations  of  farmers  or 
agricultural  or  live  stock  producers.^  It  is  a 
curious  fact  that  while  the  tendency  of  our  laws 
is  more  and  more  to  legalize  combinations  among 
employees  and  the  laboring  class,  or  even  among 
farmers  and  the  agricultural  class,  there  has,  at 
the  same  time,  grown  up  this  vast  body  of  legis- 
lation  prohibiting  the   corresponding  combina- 

3  Dueber  Watch  Case  Co.  v.  Howard  Watch  Co.,  66  F. 
R.,  637.     Mogul  S.S.  Co.  v.  Macgregor,  66  L.  T.,  1. 

*  Wis.,  1893,  219,  9;  Tex.,  1895,  83,  12. 

»  Tex.,  ib.;  Mich.,  1889,  225.  See,  for  the  anti-trust  laws 
up  to  1893,  Stirason's  Am.  Stat.  Law,  Vol.  II.,  §§  9900-9905. 


188         HANDBOOK    TO    TIIP:    LAHOR    LAW 

tioii  Oil  the  part  of  the  employer  or  producer. 
Most  of  these  statutes  are,  however,  ineffectual 
for  one  reason  or  another.  For  instance,  the 
last  one,  passed  in  Missouri,^  which  superseded 
the  previous  existing  statute  of  1891,  makes  it 
illegal  for  any  corporation  or  individual  to  be- 
come a  member  of  any  pool,  trust,  agreement, 
combination,  federation,  or  understanding  with 
any  other  corporation  or  individual  to  fix  the 
price  of  any  article  or  product,  etc.  Now,  while 
it  might  possibly  be  conceded  to  be  in  accord- 
ance with  common  law  principles  to  prohibit  any 
actual  pools  by  which  the  price  or  output  was 
limited  to  a  certain  amount,  and  the  profits  di- 
vided, such  a  combination  being  in  restraint  of 
trade,  and  while  perhaps  even  it  might  be 
deemed  unlawful  at  common  law  to  make  a 
combination  not  to  sell  any  product  or  more 
than  a  certain  amount  of  any  product,  or  not 
to  sell  for  a  long  period  of  time,  except  at  a 
certain  price,  it  is  hard  to  see  any  constitu- 
tional justification  for  forbidding  two  or  three 
individual  dealers  to  come  to  any  understand- 
ing among  themselves  as  to  what,  at  least  for  a 
certain  period  of  time,  they  shall  charge  for 
their  commodities.  Such  statutes  are  against 
general  constitutional  principles,  if  not  against 
express  provision  of  our  state  or  federal  consti- 

•  Mo.,  1895,  p.  237. 


OF   THE    UNITED   STATES  189 

tutions.  Owing  to  the  great  difficulty  of  en- 
forcing such  laws,  and  procuring  the  necessary 
evidence,  there  has  been  little  authoritative  de- 
termination of  their  constitutionality  as  yet  in 
the  courts.  Then,  coming  to  an  agreement 
among  employers  to  pay  a  certain  price  for 
labor  :  It  is  hard  to  see  why  this  should  bo 
considered  illegal,  if  the  Avhole  authority  of 
American  judicial  decision  is  to  make  similar 
combinations  on  the  part  of  laborers  or  em- 
ployees perfectly  legal.  Such  statutes  may  be 
constitutional,  but  they  are  hardly  fair.  How- 
ever, as  we  have  said,  the  ordinary  statute 
against  trusts  does  not  cover  this  point,  and 
consequently  they  are  not  cited  in  this  hand- 
book. (See  Stimson's  "  American  Statute  Law," 
Vol.  II.,  pp.  580-590.) 

The  case  of  More  v.  Bennett,  fully  discussed 
in  §  51  above,  is  direct  authority  that  a  combi- 
nation of  employees,  and  consequently  of  em- 
ployers, to  fix  wages  and  impose  penalties  on  its 
own  members  for  working  for  less,  is  illegal. 
We  have  stated  at  great  length  in  §§  51  and  55 
our  opinion  that  the  modern  law  is  otherwise, 
and  that  combinations,  either  of  employers  or  em- 
ployees, to  fix  wages,  etc.,  in  the  absence  of  any 
illegal  act  or  of  any  combination  otherwise  un- 
lawful— such  as  a  boycott — are  perfectly  legal.' 

'  See  Bohn  Mfg.  Co.  v.  HoUis,  55  N.  W.,  1119 ;  §  57  below. 


190        HANDBOOK    TO   THE   LABOIl   LAW 

Partly  as  a  consequence  of  the  modem  preju- 
dice against  tmsts  or  combinations  of  producers, 
however,  there  are  a  great  many  recent  cases 
which  drasticall}^  enforce  the  okl  common  law 
doctrine  against  combinations  in  restraint  of 
trade,  and  make  any  combination,  agreement,  or 
association  of  producers  or  wholesale  dealers  to 
fix  prices  unlawful ;  such  as  combinations  to  fix 
the  price  of  milk,  sugar,  coal,  lumber,  salt, 
matches,  sheep,  whiskey,  or  other  necessaries  of 
life,  and  refusing  to  allow  parties  to  the  combi- 
nation to  enforce  penalties  provided  by  the  by- 
laws for  imder-selling. 

Thus  in  Commonioealth  v.  Tack  (1  Brewster, 
511),  decided  in  1868,  the  defendant  was  in- 
dicted for  a  conspiracy  to  stimulate  the  price  of 
oil.  The  fact  was  that  the  prosecutor,  one  James 
O'Connor,  having  been  advised  by  the  defend- 
ants that  oil  would  go  lower  and  that  he  had 
better  "  go  short,"  entered  into  contracts  with 
Tack  Bros.  &  Co.  for  the  delivery  of  16,000 
barrels  of  oil,  whereby  he  lost  lai-ge  sums  of 
money ;  and  he  procured  the  indictment  of  Tack 
Bros,  on  the  charge  of  combining  to  raise  the 
price.  The  case  is,  in  fact,  a  curious  surA^val 
of  the  old  English  statutes  against  forestalling, 
and  probably  would  not  have  been  possible  but 
for  the  allegation  of  conspiracy.  The  court 
charged  that  an  agreement  between  two  or  more 
persons  to  forestall  and  control  the  market  for 


OF   THE    UNITED    STATES  191 

any  necessary  of  life  by  the  employment  of  false- 
hood, and  "  an  unmixed  motive  of  mischief 
either  to  the  public  or  an  individual,"  was 
indictable  as  a  conspiracy;  but  the  jury  disa- 
greed. 

As  good  an  example  of  such  cases  as  any  is 
perhaps  the  case  of  the  Texas  Standard  Cotton 
Oil  Co.  V.  Adoue,^  and  also  Morris  Run  Coal 
Co.  V.  Barclay  Coal  Co.,^  the  former  being  a 
case  where  plaintiffs,  representing  four  cotton- 
seed mills,  combined  with  defendants  represent- 
ing a  large  number  of  other  mills,  all  being  deal- 
ers in  cotton  seed  and  manufacturers  of  products 
therefrom,  for  the  purpose  of  having  defend- 
ants take  the  enthe  yield  of  their  mills,  they 
guaranteeing  the  plaintiffs  a  certain  profit,  estab- 
lishing prices  to  be  paid  for  seed  cotton,  to  be 
changed  only  by  agreement,  and  the  minimum 
price  at  which  all  meal  cake,  etc.,  should  be  sold ; 
and  that  the  plaintiffs  should  not  purchase  or 
ship  any  seed  from  a  certain  place.  The  court 
refused  to  sustain  an  action  by  the  plaintiffs  to 
recover  the  net  profits  under  the  guaranty,  on 
the  ground  that  the  contract  was  void  at  com- 
mon law  as  being  in  restraint  of  trade.  In  the 
latter  case,  five  coal  companies  in  Pennsylvania 
entered  into  an  agreement  in  New  York  to  di- 


*  19  S.  W.  Rep.,  274. 
'  68  Pa.  St.,  173. 


192         HANDBOOK    TO    THE    LABOR    LAW 

vide  two  coal  regions  of  which  they  had  con- 
trol, to  appoint  a  general  agent  who  should  re- 
ceive the  coal  mined  from  both  companies,  each 
in  a  certain  proportion,  with  a  committee  to  ad- 
just prices,  freight  rates,  etc.,  and  providing  for 
settlements  betweien  the  several  companies  ev- 
ery month.  The  coui-t  refused  to  enforce  this 
contract  also,  in  a  suit  brought  by  one  of  the 
companies  against  the  others.  In  this  case 
there  was  a  New  York  statute,  but  the  decision 
would  probably  have  been  the  same  without  it,'" 
In  fact  these  modern  anti-trust  acts,  so  far  as 
they  can  be  bi'ought  under  the  most  stringent 
provisions  of  the  common  law,  are  unnecessary ; 
because  the  courts  in  their  present  temper  w^ould 
commonly  come  to  the  same  conclusion  without 
them ;  while  in  cases  where  the  statutes  them- 


»»  See  also  the  Sugar  Trust  Case,  121  N.  Y.,  582  ;  State  v. 
Neb.  Distilling  Co.,  29  Neb.,  700;  Diamond  Match  Case, 
Richardson  v.  Buhl,  77  Mich.,  632;  Salt  Co.  v.  Guthrie, 
35  O.  State,  66G;  People  v.  Sheldon,  139  N.  Y.,  251;  Phoe- 
nix Bridge  Co.  v.  Keystone  Co.,  142  N.  Y.,  425 ;  Wells  v. 
McGeoch,  71  Wis.,  196;  People  v.  Milk  Exchange,  27  L.  R. 
A.,  437;  Ford  v.  Chicago  Milk  Association,  39  N.  E.,  651; 
Judd  V.  Harrington,  139  N.  Y.,  105.  Such  pools,  etc.,  are 
illegal  although  the  public  be  uot  in  fact  injured  :  Judd  v. 
Harrington.  A  pool  not  to  sell  beer  to  outsiders  for  less  than 
$9  a  barrel  was  refused  enforcement  bj'  a  court  of  equity : 
Neater  v.  Continental  Brewing  Co.,  161  Pa.  St.,  473.  But 
sales  by  a  member  of  such  a  trust  maj'  be  sued  upon :  Nat. 
Distilling  Co.  v.  Cream  City  Co.,  86  Wis.,  352. 


OF   THE   UNITED   STATES  193 

selves  depart  from  the  common  law,  the  courts 
have  usually  found  a  reason  for  not  enforcing 
them.  It  is  difficult  for  a  southwestern  legisla- 
ture to  improve  upon  the  common  law  in  its  first 
attempt. 

13 


194        HANDBOOK   TO   THE   LABOR   LAW 


CHAPTER  Vin 

STRIKES   AND   BOYCOTTS 

§  55.  Strikes. — In  the  first  chapter  we  dis- 
cussed the  termination  of  employment  contracts, 
or  the  quitting  of  work  by  employees  indi\ddu- 
ally,  and  also  the  legaHty  of  efforts  by  way  of 
persuasion  or  intimidation  to  bring  others  to 
quit  employment.  We  now  come  to  the  much 
more  complex  question  of  the  legality  of  con- 
certed efforts  to  bring  about  siicli  results.  There 
is  no  subject  connected  "«ith  labor  law  about 
which  there  has  been  so  much  disagreement 
among  judges  and  jurists,  and  about  which  there 
is  still  so  much  doubt.  A  recent  text-book  u]:X)n 
strikes  and  V^jc^tts  g'^'^s  s"  far  fiR  t^  "^ny  thnt 
there  can  be  no  such  thing  as  a  legal  strike.    The 


truth  is  probably  the  exact  opposite.  Ixiatead 
of  paying  no  strikes  are  legahwe  shonlrl  now  say 
all  strikes  are  legal ;  that  is,  all  plain  and  simple 
combinations  to  quit  work  when  there  is  no 
breach  of  a  definite  time-contract  in  so  doing, 
and  where  it  is  not  complicated  with  any  ele- 
ment of  boycotting,  or  marked  by  any  disorder 
or  intimidation.  When-  these  l^ttf^r  exist,  it  m 
the  boycotting,  disorder,  or  intimidation  that  is 


OF   THE    UNITED   SPATES  195 

illegal,  and  may  be  punished  or  prevented  by  in- 
junction ;  notthe  strike. 

The  notiouthat  mere  strites  are  illegal  is 
based  entirely  upon  old  English  cases,  which 
were  followed  perhaps,  to  some  extent,  in  this 
country  early  in  the  present  century,  but  which 
our  courts  have  now  ceased  to  follow,  and  the 
doctrine  of  which  has  long  since  been  abrogated 
in  England  by  express  statute.  We  showed  in 
Chapter  I.  how  the  mere  quitting  of  work  by 
an  individual  is  never  criminal,  nor  even  gives 
the  employer  any  action  for  civil  damage,  unless 
there  is  a  breach  of  a  definite  time-contract ;  and 
it  is  only  the  old-established  English  common 
law  concerning  conspiracy  which  made  the  mat- 
ter difi'erent  in  case  of  a  combination  to  leave, 
or  strike.  This  doctrine  was,  and  is,  except 
when  modified  by  recent  statutes  in  labor  cases, 
that  an  unlawful  conspiracy  is  a  combination  of 
two  or  more  persons  to  accomplish  a  criminal,  un- 
lawful, or  immoral  purpose  by  means  ivhich  may 
he  unlaivful  or  lawful ;  or  a  combination  to  ac- 
complish a  laicful  purpose  by  criminal  or  illegal 
means  (or  perhaps  even  fraudulent  or  immoral 
means'),  or  for  a  purpose  which  could  only  be 

'State  V.  Burnham,  15  N.  H.,  396,  at  pp.  401,  402.  In 
Timberly  v.  Childe,  1  Siderfin,  68,  decided  as  early  as  1663, 
it  was  held  that  it  was  an  unlawful  conspiracy  for  persons  to 
combine  for  charging  a  man  with  being  the  father  of  a  bas- 
tard child,  although  that  was  nut  a  legal  offence,  but  purely 


19G        HANDBOOK   TO   THE   LABOR   LAW 

hromjht  ahoiU  by  the  use  of  S2ich  means.  This  law 
of  conspiracy  is  perfectly  definite  and  well  set- 
tled, and  exists  to-day,  and  the  participants  in 
such  conspiracy  render  themselves  criminally 
liable,  besides  being  in  all  cases  liable  civilly  to 
the  party  or  persons  injured  for  any  actual 
damage  they  incur.  Now,  the  word  "  immoral  " 
in  the  above  definition  is  very  important,  and 
has  been  construed  very  broadly.  It  means 
substantially  not  only  purposes  against  morality, 
such  as  the  seduction  of  a  woman,*  but  things 
which  are  contrary  to  ordinary  Ckristian  doc- 
trine/ or  even  the  principle  of  the  Golden  Kule.* 
Thus,  a  conspiracy  to   do  financial  harm  to  a 

a  moral  one ;  and  to  the  same  effect  in  the  case  of  Queen  v. 
Best,  1  Salk.,  174,  the  indictment  was  for  conspiracy  to  make 
the  same  charge.  The  court  said  "  the  conspiracy  is  the  gist 
of  the  indictment,  and  that,  tho'  nothing  be  done  in  prose- 
cution of  it,  is  a  complete  and  consummate  offence  of  it- 
self ;  and  whether  the  conspiracy  be  to  charge  a  temporal  or 
ecclesiastical  offence  on  an  innocent  person,  it  is  the  same 
thing."  And  in  the  case  of  the  indictment  of  Lord  Grey  and 
others  for  combining  to  seduce  a  young  woman  under  eigh- 
teen, decided  in  1682,  the  indictment  was  sustained,  and  the 
defence  were  found  guilty,  although  it  appeared  that  the 
young  woman  was  willing,  so  there  was  no  criminal  offence. 
9  Howell's  State  Trials,  127. 

2  Smith  r.  People,  25  111.,  17. 

="  Hawkins,  in  his  "  Pleas  of  the  Crown  "  (Vol.  II.,  p.  121), 
states  that  a  conspiracy  wrongfully  to  prejudice  a  third  person 
is  highly  criminal  at  the  common  law.  And  see  Reg.  v.  Best, 
1  Salk.,  17-1. 

*  State  V.  Buchanan,  5  Harris  and  Johnson  (Md.),  317. 


OF   THE   UNITED   STATES  197 

definite  person,  or  class  of  persons,  is  an  unlaw- 
ful conspiracy,  within  the  meaning  of  the  defini- 
tion/ So  a  conspiracy  to  accomplish  a  thing 
against  the  general  welfare  of  the  state,  such  as 
suppression  of  records,  or  the  destruction  of 
boundaries,  the  bringing  about  of  legislation  by 
improper  means,  or  the  manufacture  of  evi- 
dence/ The  court  seems  to  have  held  in  the 
Spies  case,  of  the  Chicago  anarchists,  that  an 
association  of  anarchists  was  in  itself  a  criminal 
conspiracy,  because  its  object  is  the  subversion 
of  all  laws.'  It  is  easy  to  see  why  a  combination 
to  j-O  a  thing  harmful  to  the  state  mffy  ^^^  pun  - 
ished  by  the  state,  but  it  is  harder  at  first  in  sap. 
why  a  combination  merely  to  injure  a  person's 
success  or  prosperity,  such^s  a^  combination  to 
hiss  an  actor/  or  not  to  pay  rent/  should  also 

•Thus,  in  Rex  v.  Cope,  1  Strange,  144,  a  husband  and 
wife  and  their  servants  were  indicted  for  a  conspiracy  to  ruin 
the  trade  of  the  prosecutor,  who  was  a  card-maker,  by  put- 
ting grease  in  the  paste  for  his  cards.  In  Baughmann's  case 
(see  11  Va.  L.  T.,  324)  defendants,  members  of  trades 
unions,  were  indicted  for  conspiring  to  injure  the  plaintiff's 
business  by  threatening  to  break  up  the  business  of  third 
parties  if  they  purchased  goods  of  the  plaintiff.  See  also 
People  V.  Petheram,  64  Mich.,  252 ;  Rex  v.  Eccles,  3  Doug., 
337. 

•King  V.  Mawbey,  6  T.  R.,  619. 

'Spies  V.  People,  122  111.,  1. 

"Gregory  v.  the  Duke  of  Brunswick,  6  Manning  & 
Granger,  205. 

»  Ex-pm-te  Dalton,  28  L.  R.  Irish,  36. 


198        HANDBOOK   TO   THE   LA  BOM   LAW 

bc-piiiiisbedjby  the  state  as  a  criminal  offence, 
when  the  same  licts,  \vIieirTlx)ne  by  any  number 
of  indivithials  without  concert  of  action,  would 
injio  sense  be  criminal,  nor  perhaps  even  sub- 
ject  the  individuals  to  damages.  One  individual 
may  wish  another  any  amount  of  harm,  may  seek 
to  injure  his  business  or  prosperity  in  all  possible 
ways,  but  still,  so  long  as  he  commits  no  trespass 
or  battery,  and  no  fraud  or  theft,  he  is  not  liable 
even  civilly,  still  less  criminally.'"  But  the  law  of 
conspiracy  is  one  of  the  rare  instances  where  the 
law  goes  solely  into  the^ntent  and  purposes  of 
the  act.  It_js  the  combining  with  such  wrong 
intent  or  purpose  that  makes  the  participators 
liable  to  the  criminal  law,  not  the  ultimate  mo- 
tiv£^jDor  the  acts  which  they  do,  even  though 
these  be  criminal  in  themselves,  or  though  they 
do  no  acts  whatever.  "It  is  one  of  the  few 
cases  where  the  law  undertakes  to  punish  crim- 
inally an  unexecuted  intent."  "  For  instance,  a 
conspiracy  to  prevent  men  taking  Avork  by  as- 
saulting them  with  weapons  would  render  all 
the  members  of  it  liable  to  conviction  for  crim- 
inal conspiracy,  and  besides,  those  actually  com- 

'•>  Thus  the  Calcutta  Marine  Superintendent  ordered  all  his 
pilots  not  to  employ  a  certain  tug,  and  was  held  not  liable  in 
damages  to  the  owner  of  the  tug.  Rogers  v.  Dutt,  13 
Moore  P.  C,  209. 

"Queen  v.  Best,  1  Salk.,  174;  U.  S.  i>.  Cassidy,  67  F. 
R.,  705;  Baughmann's  Case,  11  Va.  L.  J.,  324. 


OF   THE    UNITED    STATES  199 

mitting  the  assaults  would  also  be  liable  for 
criminal  assault  and  battery ;  and  all  the  mem- 
bers of  the  combination  might  be  so  guilty  of 
conspiracy,  although  no  actual  assault  were  com- 
mitted,"' provided  that  was  the  agreed  method 
of  carrying  out  the  conspiracy ;  or  in  cases  where 
it  was  necessarily  and  obviously  the  only 
method  by  which  the  result  could  be  attained. 
So,  under  the  first  branch  of  the  definition  as 
above  expressed,  a  combination  to  drive  A  B 
out  of  business  in  a  certain  town  is  a  criminal 
conspiracy,  though  the  means  employed  are 
merely  legal  combination  ;  "  but  a  combination 
by  other  merchants  in  the  town  to  get  all  the 
business  in  the  town  would  not  be  a  criminal 
conspiracy,  even  though  the  things  done  in  both 
cases  were  precisely  the  same,  and  as  a  result 

'*  King  V.  Eccles,  3  Douglas,  337  (see  next  note)  ;  King 
V.  Gill,  2  B.  &  Aid.,  204;  Poulterer's  Case,  9  Coke,  55  B. 

''  King  V.  Eccles,  3  Douglas,  337.  This  was  a  case  where  an 
indictment  was  sustained  charging  that  the  defendants  con- 
spired "by  indirect  means"  to  impoverish  the  prosecutor  by 
depriving  and  hindering  him  from  following  his  trade  of  a 
tailor  in  Liverpool,  and  it  was  held  unnecessary  to  set  forth 
in  the  indictment  any  particular  acts  which  were  done,  that  be- 
ing mere  matter  of  evidence.  So,  in  an  early  New  York  case 
of  sailors'  boarding-house  keepers,  indicted  for  combining 
not  to  ship  men  through  a  certain  notary,  the  court  held  that 
a  combination  to  do  or  not  to  do  an  act  which,  if  done  or  not 
done  respectively,  would  injure  an  individual  in  person,  prop- 
erty, or  reputation,  was  a  criminal  conspiracy.  Emanuel's 
Case,  6  C.  H.  Rec,  33. 


200         HANDBOOK    TO   THE    LABOR   LAW 

A   B    iu   both   cases  was   driven   out   of  busi- 
ness." 

-'"  This,  I  think,  will  be  found  to  be  the  ultimate 
tedLijf  the  unlawful  conspiracy.  The  InTw^herft 
^oes  into  the  domain  of  conscience  and  morals. 
The  c[uestion  is  not  so  much  whal^  is  done,  nor 
eveii^  what  results  follow,  bnt  wli^f  is  th^  in- 
m(^t  real  intent  of  the  persons  engaged  in  do- 
ing]iC 

Under  the  statute  of  Elizabeth  wages  were  at 
least  pretended  to  be  fixed  by  law,  or  by  a  ma- 
chinery of  magistrates,  etc.,  provided  by  statute. 
A  combination  to  raise  the  rate  of  wages,  there- 
fore, became  technically  illegal,  and  upon  this 
ground  the  leading  and  oldest  case,  that  of  the 
Joui-neymen  Tailors,  was  probably  decided  and 
can  only  be  maintained.  (See  below.)  And  be- 
sides these  statutes  regulating  wages,  we  must 
note  that  there  was  also  in  existence  a  statute 
(the  second  and  third  of  Edward  VI.),  passed  in 
1548,  forbidding  "all  conspiracies  and  covenants 
of  workmen  not  to  make  or  do  their  work  but  at 
a  certain  rate  or  price,"  the  third  conviction  un- 
der this  statute  being  punishable  by  the  pillory 
and  the  loss  of  an  ear.  This  statute  was  not 
expressly  repealed  until  the  present  century,  and 
there  were  divers  other  statutes  passed  in  the 
seventeenth  and  eighteenth  centui'ies  regulating 

"Mogul  S.  S.  Co.  V.  iSlcGregor,  L.  R.,  23  Q.  B.  D.,  598. 


OF   THE    UNITED    STATES  201 

wages,"  and  in  1717  Hawkins  published  his 
"  Pleas  of  the  Crown,"  which  is  usually  quoted 
as  the  leading  authority  for  the  principle  above 
stated,  "  that  there  can  be  no  doubt  but  that  all 
conspiracies  whatsoever  wrongfully  to  prejudice 
a  third  person  are  highly  criminal  at  common 
law."  (2  P.  C,  121.)  And  Chitty  adds  the 
words  "whether  the  intention  is  to  injure  his 
l^roperty,  his  person,  or  his  character."  (3  Crim. 
L.,  1139.) 

Upon  this  state  of  the  law  and  statutes  the 
Journeymen  Tailors  case  '^  arose.  Certain  jour- 
neymen tailors  of  the  toAvn  of  Cambridge  were 
indicted  for  a  conspiracy  among  themselves  to 
raise  their  wages  by  refusing  to  work  at  so 
much  per  diem.  The  defence  was  that  the 
statute  of  Elizabeth  did  not  require  them  to 
work  by  the  day,  but  by  the  year,  and  there- 
fore no  crime  appeared  upon  the  face  of  the 
indictment.  The  court  held  that  it  was  not  for 
the  refusing  to  work,  but  for  the  conspiracj",  that 
they  were  indicted,  and  that  a  conspiracy  of  any 
kind  is  illegal,  though  the  matter  about  which 
they  conspired  might  be  lawful  for  one  of  them, 
or  any  of  them,  to  do  if  they  had  not  conspired 
to  do  it ;  "  and  this  appeared  in  the  case  of  the 
Tubwomen  v.  the  Brewers  of   London."     This 


'^  See,  for  discussion  of  these  laws,  Master  Stevedore's  As- 
sociation V.  Walsh,  2  Daly  (N.  Y.),  1. 
'•8  Mod.,  11. 


202        IIAXDBOOK    TO   THE   LABOR   LAW 

case  of  the  Tubwomen  is  somewhat  mythical, 
but  is  believed  to  be  the  case  of  the  King  v. 
Starling,  1  Keble,  650,  in  which  certain  brewers 
were  indicted  for  conspiracy  to  cease  making 
small  beer,  and  thus  incite  a  riot,  and  deprive 
the  king  of  his  excise.  It  has,  therefore,  no 
bearing  on  the  question  of  a  strike,  but  is  an 
authority  for  the  proposition  above  advanced 
that  a_  legal  combination  by  lawful  means  to 
effect  a  thing  injuriouYlEo  the  slate  Ts~  a  criminal 
conspiracy.  On  this  Journeymen  Tailors  case 
alone  hangs  all  the  law  of  the  illegality  of  a 
strike  as  strike,  and  it  will  be  seen  that  the  case 
itself  only  goes  to  the  length  of  so  holding  when 
the  object  of  the  strike  is  to  raise  wages,  which 
may  frequently  not  be  the  case.  Yet  its  doc- 
trine persisted  in  England  as  late  as  the  case 
of  Hilton  V.  Eckersly  (see  §  54)  and  Farrer  v. 
Close  "  (1869 j,  where  the  court  were  divided 
whether  a  labor  union,  part  of  whose  by-laws 
countenanced  strikes,  was  not  thereby  rendered 
wholly  illegal. 

But  in  this  country,  wages  never  having  been 
fixed  by  law,  the  case  should  never  have  been 
followed.  It  was  followed  in  three  early  cases, 
happening  respectively  in  Philadelphia,  in  1806, 
in  New  York,  in  1809,  and  in  Pittsburg,  in  1815 ; " 

"  L.  R.,  4  Q.  B.,  602,  at  p.  612. 

'*  The  Boot  and  Shoemakers  of  Philadelphia,  pamphlet, 
1806  ;   Journeymen  Cordwainers  of  New    York  (People    v. 


OF   THE   UNITED   STATES  203 

all  decided,  however,  in  inferior  courts.  The 
first  supreme  court  which  had  to  treat  the  sub- 
ject was  that  of  Pennsylvania.'"  This  case  was 
not,  indeed,  decisive  of  the  exact  point,  because 
instead  of  being,  a  combination  of  employees  to 
raise  wages,  it  was  a  combination  of  employers 
to  reduce  them  ;  but  the  court  held  incidentally, 
apparently  without  knowledge  of  the  Mer- 
chant Tailors  case,  that  it  had  never  been  de- 
cided in  England  that  it  was  unlawful  for 
either  side  to  make  combinations  not  to  work, 
or  not  to  employ  below  or  above  certain  wages. 
It  is  probable  that  in  England  the  combination 
of  employers  to  pay  not  more  than  the  rate  of 
wages  legally  prescribed  would  not  have  been 
held  a  criminal  conspiracy.  But  finally,  Judge 
Daly,  of  the  New  York  court  of  Common  Pleas, 
in  the  first  really  well-argued  and  exhaustive 
decision  on  the  subject,"  decided  in  1867,  af- 
firmed the  principle  of  Commonwealth  v.  Car- 
lisle, and  denied  the  authority  of  the  Merchant 
Tailors  case  at  least  in  this  country,  although 
to  Judge  Shaw,  of  Massachusetts,  and  Mr.  Ran- 
toul,  of  Salem,  belong  the  chief  credit  of  pre- 
venting the  doctrine  of  the  Merchant  Tailors 
case  from  being  established  in  this  country.     In 

Melvin),  2  Wheel.  Crim.  C,  262  ;  Pittsburgh  Cordwainers, 
pamphlet,  1816. 

'»  Com.  V.  Carlisle  (1821),  Brightly's  Rep.,  36. 

■•«'  Master  Stevedores  v.  Wal.«h,  2  Daly,  1. 


204         HANDBOOK    TO   THE    LABOR   LAW 

the  case  of  the  Commonwealth  v.  Hunt,"  de- 
cided in  1842,  ai-gued  by  Rantoul,  Shaw  first 
clearly  expressed  the  view  above  set  forth." 

This  view,  that  it  is  lawful  for  a  laborer,  or 
anj^  number  of  laborers,  to  leafve  his  work  at 
any^_time^  or  to  combiiie_toifia:ve-at  any  time  for 
any  lawful  purpose,  such  as  the  raising  his  own 
wai3;es,  or  the  bettering  his  own  (^onrlition  in 
otherj'espects,  would  probably  have  never  more 
been  disputed  in  this  country  but  for  the  ex- 
traordinary^ statutes  known  as  the  Interstate 
Commerce  Act  and  the  Anti-Trust  Act,  passed 
in  1887  and  1890,  respectively,  and  for  the 
American  practice  of  putting  railroads  and  other 
corporations  when  insolvent  in  the  hands  and 
under  the  active  management  of  courts  of  equity. 
AVe  shall  have  occasion  to  discuss  much  more 
fully  the  effects  of  this  practice,  and  of  these 
statutes,  in  a  later  section.  /"/It  will  be  suf- 
ficient to  say  here  that  the  effect  of  the  Inter- 
state  Commerce  Act  Avas  to  make  any  combina- 
tion of  persons,  for  any  purpose  wiriclrhad  the 
necessary  or  intended  effect  of  interfering  with 
interstate  transportation,  an  unlawful  conspiracy ; 
an  effect  which  was  confirmed  by  the  later  sec- 
tions of  the  Anti-Trust  Act,  which,  moreover, 
provided  expressly  that  the  United  States 
through   its   district   attorneys  should  go   into 

2'  15,  4  Met.,  111. 

"  See  also  People  r.  Trequier  ;  1  Wheeler  Cr.  C,  142. 


OF   THE   UNITED   STATES^  205 

nom-ts  of  equity  and  obtain  injnuctiops  against 
suc^_persons,  and  expressly  definecL_a_jafiW_soa't 
of  conspiracy  which,  though  the  statute  was 
aimed  at  combinations  of  employers,  equally 
covers  combinations  of  employees  or  other  per- 
sons, and  has  in  practice  worked  mainly  against 
them. 

Thus  in  Thomas  v.  Cincinnati,  N.  O.  and  T. 
P.  E.,  62  F.  R.,  303,  the  court  held  that  it  was 
an  unlawful  conspiracy  at  common  law  for  em- 
ployees of  a  railroad  to  strike  with  the  motive 
of  retarding  mails,  under  section  3995  U.  8, 
Kev.  Stats.,  and  affirmed  the  principle  that  any 
unlawful  interference  with  the  operation  of  a 
road  in  the  hands  of  a  receiver  is  a  contempt  of 
court." 

Strikes  by  Persons  under  Contract. — We  con- 
clude, therefore,  that  at  least  except  in  cases 
where  a  strike  is  specially  and  primarily  aimed 
at  interfering  with  interstate  commerce,  it  is  per- 
fectly legal,  or  gives  rise  to  no  criminal  nor  civil 
liability,  and  may  not  be  prohibited  by  injunc- 
tion. Now,  is  the  matter  made  different  jvrhen 
the  person  striking  comnii^^s  i?^  so  (\l\^^\a-s*Jhirf^r\^ 
of  an  express  contract ;  or,  still  more,  when  the 
defendants  are  members  of  a  combination  to  in- 
duce others  to  strike  who  are  working  under  a 


"  See  also  U.  S.  v.  Kane,  23  F.  K.,  748  ;  In  re  Doolittle, 
23  F.  R.,  544  ;  In  re  Higgins,  27  F.  R.,  443  ;  Secor  v.  R.  R. 
Co.,  7  Biss.,  513. 


200         HANDBOOK    TO    THE    LABOR    LAW 

time  contract  ?  It  -Gamiot— be^  stated  that  the 
law  is  definitely  settled  on  this  point.  It  hxis 
not  yet  been  fully  considered^  Under  the  defi- 
nition of  conspiracy  given  above,  the  breaking 
of  a  contract,  if  not  illegal,  is  at  least  an  immoral 
act,  and  a  conspiracy  to  obtain  persons  to  break 
their  contracts  is  certainly  a  conspiracy  having  for 
its  object  the  injury  of  a  third  person.  The  near- 
est recent  case  to  the  subject  is  that  of  Queen  v. 
Bunn,^*  where  it  was  held  that  servants  of  a  gas 
company  working  under  a  contract  of  service, 
who  agreed  together  to  quit  the  service  of  their 
employers  without  notice,  and  in  breach  of  their 
contracts,  were  guilty  of  conspiracy  under_the 
common  law/  and  might  be  enjoined ;  but  the 
case  is  not  a  clear  authority  on  the  point  for  two 
reasons  :  first,  that  it  appeared  the  object  of  the 
conspiracy  was  to  force  the  company  against  its 
will  to  employ  a  man  it  objected  to  employ,  and 
the  breaking  of  their  contracts  to  labor  by  the 
defendants  was  the  means  employed  and  not  the 
end ;  secondly,  because  in  England,  under  the 
Masters  and  Servants  Act  of  1867,  the  breaking 
of  a  contract  of  employment  by  servants,  factory 
employees,  etc.,  was  made  a  penal  ofi'ence. .  The 
employer  could  complain  to  a  magistrate,  who 


«'  12  Cox  C.  C,  316.  The  court  expressly  overruled  this 
case  with  Reg.  v.  Druit,  in  Gibson  v.  Lawson :  17  Cox  C.  C, 
354;  but  the  new  statute  of  1875  (see  below)  was  quite  suffi- 
cient ground  for  the  decision  ;  the  rest  was  but  a  dictum. 


OF   THE    UNITED    STATES  207 

was  given  by  the  statute  authority  to  direct  ful- 
filment of  the  contract  of  service  under  penalty 
of  fine  or  imprisonment.  Now,  in  this  country, 
with  the  exception  of  the  few  southern  states 
whose  statutes  to  the  contrary  effect  were  cited 
in  §  49,  it  is  not  criminal  or  penal  to  break  a 
contract.  Therefore  it  is  possible  that  the  doc- 
trine of  this  case  would  not  apply  in  the  United 
States.^  It  is  noteworthy,  however,  that  Judge 
Oliver  W.  Holmes,  of  the  Supreme  Court  of 
Massachusetts,  in  rendering  a  most  important 
decision  when  refusing  an  injunction  against 
certain  employees  from  refusing  to  work  and  per- 
suading others  not  to  work,  expressly  noted  that 
the  employees  were  not  under  any  time  contract, 
were  therefore  at  liberty  to  cease  work  at  any 
time,  and  were  therefore  not,  in  combining  to 
persuade  others  not  to  go  on  working,  seeking 
to  have  them  break  an  express  contract  with  the 
plaintiff.  It  was  implied  in  Judge  Holmes's  de- 
cision that  the  conspiracy  or  combination  might 
have  been  unlawful  if  such  had  been  the  case.-*" 

There  is  a  recent  English  statute,  passed  in 
1875,  concerning  conspiracy,  which  declares  that 
an  agreement  or  combination  of  two  or  more 
persons  to  do  or  procure  to  be  done  any  act  in 

"  But  see  Angle  v.  Ry.  Co.,  151  U.  S.,  1  ;  Arthur  v.  Oakes, 
63  F.  R.,  310. 

='  This  case  is  unreported,  but  can  be  found  in  full  in  the 
Massachusetts  Labor  Annual  for  1895. 


208         HANDBOOK    TO   THE   LAIlOIi    LAW 

contemplation  or  furtherance  of  a  trade  dispute 
between  employers  and  workmen,  shall  not  be 
indictable  as  a  conspiracy  if  such  act  committed 
by  one  person  would  not  be  punishable  as  a 
crime.  With  the  exception  of  Marylaud,^'  this 
act  has  not  been  copied  in  any  of  the  United 
States.  Of  course  these  provisions  are  conclu- 
sive, and  undoubtedly  do  away  with  the  whole 
common  law  of  conspiracy  in  labor  disputes  ;  '* 
and  it  is  probable  that  the  labor  interests  will 
make  strong  efforts  during  the  next  few  years  to 
secure  their  general  adoption  in  this  country ; 
but  until  such  a  statute  has  been  passed  chang- 
ing the  common  law,  we  can  only  conclude  that  a 
conspiracy  of  persons,  whether  employed  or  not, 
to  induce  each  other,  or  to  induce  third  persons, 
to  cease  labor,  when  such  ceasing  would  be  a 
definite  breach  of  contract,  is  an  unlaAvful  con- 
spiracy at  the  common  law  ;  probably  subjecting 
participators  in  it  to  criminal  process,  and  cer- 
tainly making  them  liable  in  damages  to  the 
employer  injured,  and  a  proper  case  for  an  in- 
junction from  a  court  of  equity. 

Synipathetic  Strikes,  or  Strikes  aimed  pi^i- 
marily  at  the  injury  of  the  employer  or  other  per- 
sons.— If  the  reader  will  carefully  follow  our 
line  of  reasoning  at  the  beginning  of  this  sec- 

^'  See  §  59  for  this  and  similar  statutes. 
^'  So  held  in  Gibson  v.  Lawson  and  Curran  v.  Treleaven, 
17  Cox  C.  C,  354. 


OF   THE   UNITED    STATES  209 

tion,  lie  will  see  that,  while  employees  have  a. 
legaXright  to  strike  for  their  own  hpnt-M^  in  rm'sft 
their  own  wages,  or  seek  improved  conditions 
of  emploYment,  there  will  still  be  a  question 
whgther  theyjiave  a  right  to  strike  for  no  such 
dirp.ct  pnrposp/h"t  inm-Rly  ont,  of  mn.lirift  ngninst 
the  employer,  or  still  more  as  a  simple  act  of  in- 
dustrial warfare  for  the  purpose  of  inducing 
some  employer  not  their  own,  or  the  general 
class  of  employers,  to  yield  to  the  demands  of 
some  other  person  or  persons,  or  of  some  dif- 
ferent strike.  A  strike  of  this  sort  partakes 
at  ongf^  mnrp:  of  ihp,  nature  of  the  boycott  than 
of  -the  strike,  inasmuch  as  it  is  a  conspiracy 
to  do  certain  acts  (that  is  to  strike)  not 
for  the  purpose  of  raising  the  strikers'  wages, 
etc.,  but  to  oppress  or  injure  the  business  of 
another  person.  There  is  a  case  in  Nebraska,_-^ 
which  goes  very  far  toward  holding  that  the 
combining  to  leave  work  in  such  a  way  as  to 
maliciously  injure  the  employer,  even  with  the 
motive  of  a  personal  interest  or  a  demand  of  the 
strikers,  is  g^n  unlawful  conspiracy^  and  the  Debs 
case,  and  the  similar  recent  cases  arising  at  the 
time  of  the  Pullman  strike,  are  full  of  authority 
on  the  proposition  that  any  sympathetic  strike 
is  illegal.  The  history  of  the  case  involving  the 
Northern  Pacific  liailroad  strike  is  also  very  in- 
structive on  this  point,  and  particularly  the 
manner  in  which  the  injunction  was  finally 
14 


i?10         HAXDHOOK    TO   THE    LABOR    LAW 

amended  by  the  decision  of  the  Court  of  Ap- 
peals, In  the  Nebraska  case,^  eighteen  tailors 
agreed  to  strike  oiiacertain  March  31st,  and  to 
return  all  jobs  uniinished  that  had  been  given 
out  to  them  after  the  cloth  was  cut  out.  It 
does  not  ap[)ear  that  they  were  under  contract 
to  work  for  a  definite  time,  but  the  court  seems 
to  have  held  that  it  did  appear  that  the  object 
of  a_strike  in  that  manner  must  be  thf>  mn.lir.inna 
injury  of  the  employ er^  and  he  was  given  dam- 
age.s__against  them.  This  case,  therefore,  can 
only  be  sustained  under  the  moral  distinction 
that  we  have  endeavored  to  make  clear  in  this 
section,  namely /chat  although  the  ceasing  to 
work  was  legal  in  itseK,  or  even  the  combining 
to  cease  from  work,  yet  it  became  illegal  when 
the  object  of  such  legal  actions  was  a  definite 
injury_t(iJihe_plaintiff.  In  the  Northern  Pacific 
Railroad  case,^  the  facts  were  a  general  strike 
among  the  employees  of  a  railroad  in  the  hands 
of  a  receiver  appointed  by  the  United  States 
court.  The  receiver,  Oakes,  secured  an  injunc- 
tion against  Ai-thur  and  many  others,  not  pro- 
hibiting the  employees  from  quitting  work,  but 
prohibiting  them  from  so  combining  to  quit  work 
as  to  cripple  (he  employers'  business — the  employ- 
ers' business  being  in  part  interstate  transporta- 


"  Mapstrick  v.  Ramge,  9  Neb.,  390. 

">  Arthur  v.  Oakes,  63  F.  R.,  310,  317,  321  ;  Farmers'  Trust 
Co.  V.  N.  P.  R.  R.,  60  F.  R.,  803. 


OF   THE   UNITED    STATES  211 

tion.  It  is  impossible  to  say  how  far  this  fact, 
and  that  the  receiver  was  an  officer  of  the  court, 
influenced  the  court  in  rendering  its  decision, 
and  whether  it  would  have  granted  the  same  in- 
jimction  in  a  case  where  there  was  no  interstate 
question,  and  no  possible  contempt  of  a  court 
officer  involved.  It  is  possible,  however,  that 
the  decision  would  have  been  the  same  ;  that_is, 
that  wliile_a  strike  is  legal,  it  cannot  be  so  con- 
ducted  as  to  intentionally,  malicrouslv  injure  the 
employer.  The  amendment  of  the  injunction  by 
the  Circuit  Court  of  Appeals  is  very  instructive. 
The  first  injunction  prohibited  the  defendants 
from  intimidating  others  (which  was  proper 
enough),  and  also  even  from  advising  others  to 
strike.  By  the  Circuit  Court  of  Appeals  the 
last  clause  of  the  injunction  was  stricken  out, 
and  the  employees  Avere  left  free  both  to  leave 
employment  themselves  and  advise  others  to 
leave,  provided  they  used  no  intimidation  and 
did  not  maliciously  seek  in  so  doing  to  cripple 
the  employers'  business. 

Of  course  the  Avhole  difficulty  wilLlie  here. 
Employees  having  an  undoubted  right  to  strike, 
it  _will_jii  many  cases  be  impossible  to  tell 
whether  thej^trike  simply  for  the  purpose  of 
increasing  their  own  wages  (which  the  court  de- 
cislon  expressly  authoiizad),  or  whether  they 
strike  in  order  to  injure  the  employer.  All 
strikes  injure  the  employer  somewhat,  and  em- 


212         1IAXDI500K    TO    THE    LABOi:    LAW 

ployees  Avill  naturally  and  very  properly  choose 
a  time  when  press  of  business  or  otiier  rea- 
sonsjaake  a  strike  peciiliarly  iuconvenient  to 
tlie_eiiiployer.  In  the  writer's  o])inion,  this 
doctrine  of  malicious  intent  should,  in  the  case 
of  strikes,  be  very  carefully  restricted ;  wIipvp.  it 
is  clear  that  ihf.  strik^vsi  A\f]  ^ay*^  »  legitimate 
oI4ect^|_all,  such  as  the  increasing  their  own 
wages,  it  does  not  seem  the  court  should  go  into 
the  analysis  of  possible  other  motives.  Tn  the 
case  of  boycotts  it  is  otherwise. 

But  the  most  difficult  case  of  all  to  decide  is 
that  of  a  strike  carried  on  by  employees  with  a 
motive  of  benefiting  themselves  in  some  way, 
but  where  the  immediate  object  is  to  force  the 
employer  to  adopt  some  definite  line  of  action, 
either  toward  them  or  in  the  conduct  of  his  own 
business,  or  toward  third  persons.  In  the  first 
case,  when  the  object  desired  is  merely  to  alter 
his  treatmf^nt  of  tlip  striking  ^vrrrpl rtjA^Q  fliftiYi- 
selves.  it  is  clear  that  the  object  is  «.  benefit  to 
them,  or  deemed  by  them  to  be  a  benefit^  and  it 
is  consequPTT^'ly  lawful  The  second  case  is 
more  doubtful.  If  there  be  no  element  of  a 
boycott  in  the  case,  but  still  the  strikers  desire 
to  molest  the  employer  or  control  his  action  in 
some  way,  the  end  in  view  is,  under  the  decision 
in  State  v.  Stewart  (see  §  58),  unlawful.  Take, 
for  instance,  the  case  of  a  conspiracy  to  strike 
unless  the  employer  manufactured  one  kind  of 


OF   THE   UNITED   STATES  213 

goods  rather  than  another.  Here  there  is  no 
element  of  injuiy  to  third  persons,  and  it  would 
seem,  perhaps,  hard  to  say  that  the  employees 
might  not  agree  to  leave  their  employment  in  a 
kind  of  work  which  they  did  not  prefer.  As  the 
law  now  stands,  however,  we  have  to  call  such  a 
strike  a  combination  technically  unlawful,  though 
it  may  be  doubted  whether  an  American  court 
would  ever  go  so  far  in  an  actual  case.  But  the 
third  case,  where  the  strikers  seek  to  control  the 
employer  in  his  action  concerning  third  persons, 
and  to  their  injury,  presents  no  doubt.  The  best 
possible  illustration  of  this  is  a  strike  against  an 
employer  to  force  him  not  to  employ  non-union 
men.  There  can  be  no  doubt  that  in  the  ab- 
sence of  statutes  such  as  have  been  recently 
passed  in  England,  such  a  strike,  if  evidenced 
by  any  letter  or  communication  threatening  the 
employer  with  the  strike  in  case  he  did  not  cease 
to  employ  non-union  men,  would  be  a  criminal 
conspiracy.-"  Of  course,  if  tlie  strikers  simply 
left.j  without  making  any  threat  or  giving  any 
reason,  it  might  be  impossible  to  get  evidence 
that  such  jwastheir  object.  The  threat  of  a 
strike  may  well  be  unlawful  when  the  strike  i 
itself  is  not. 

On  the  other  hand,  laborers  may  justly  refuse 
to  work  with  persons  who  have  not  been  duly 

•"  See  §  52,  Notes  5  and  7, 


214         HANDBOOK   TO   THE   LABOK    LAW 

educated  and  brought  up  to  the  trade ;  and  are 
not  subject  to  indictment  for  conspiring  to  do 
so,  or  even  to  damages  at  suit  of  the  person  so 
discriminated  against.  They  may  strike  against 
such  persons,  although  not,  say  the  court,  mere- 
ly "to  make  others  conform  to  tlieir  peculiar 
views."  ^ 

Conspiracies  to  Persuade  Others  to  Strike. — It 
will  be  seen  from  the  above  line  of  argument 
that  where  a  combination  is  made,  not  by  em- 
ployees with  a  grievance,  but  by  other  parties, 
to  persuade  employees  to  strike,  it  partakes 
more  of  the  nature  of  a  boycott,  and  may  there- 
fore become  a  criminal  or  unlawful  conspiracy. 
This  matter  will  be  fully  discussed  in  §§  57-59 ; 
but  it  has  frequently  been  held  that  a  combination 
of  persons  to  procure  employees  to  strike  to  the 
injury  of  their  employer's  business  is  a  criminal 
conspiracy  or  such  an  unlawful  conspiracy  as 
will  give  the  employer  a  right  to  damages  and 
an  injunction  against  the  persons  in  the  com- 
bination. And  this  is  probably  law  to-day  as 
to  such  persons  as  are  not  themselves  striking 
employees.^ 

^"^  Denny's  Case,  Lewis  Crim.  Law,  625. 

"  See  Walker  v.  Cronin,  107  Mass.,  555  ;  Sherry  v.  Per- 
kins, 147  Mass.,  212  ;  Thomas  v.  R.  R.  Co.  re  Phelan,  62 
r.  R.,  803  ;  Pettibone  v.  U.  S.,  148  U.  S.,  197. 

Contra^  Johnson  Harvester  Co.  v.  Meinhardt,  60  How.  Pr., 
168,  where  an  injunction  was  refused  against  members  of  a 


OF   THE   UNITED   STATES  215 

But  as  in  England  by  statute,  so  here  the  ten- 
dency of  the  courts  is  to  refuse  to  consider  as 
unlawful  a  combination  of  persons,  though  not 
employees  of  the  plaintiff,  which  merely  seeks 
to  persuade  these  to  leave  work,  if  not  in  breach 
of  any  definite  contract ;  at  least  when  such 
action  is  motived  by  some  general  labor  dispute 
and  not  expressly  or  solely  in  order  to  injure 
the  plaintift'.  There  are  plenty  of  decisions  the 
other  way  beside  those  quoted  above  ;  ^  but  the 

labor  union  not  employees  of  the  plaintiff,  from  persuading 
these  latter  to  strike. 

In  Arthur  v.  Oakes,  63  F.  R.,  310,  the  injunction  was  re- 
fused against  defendants  from  persuading  others  to  strike, 
except  as  to  striking  in  such  a  manner  as  to  cripple  the  plain- 
tiff's business. 

In  Com,  V.  Sheriff,  38  Leg.  Int.,  412,  it  was  held  that  under 
the  Pennsylvania  statute  (see  below)  members  of  a  trade 
union  who  engage  in  a  strike  and  notify  other  members,  al- 
though in  other  factories,  to  strike,  and  although  defendants 
are  not  employees  of  the  plaintiff,  are  not  guilty  of  criminal 
conspiracy  in  the  absence  of  force  or  intimidation. 

And  this  was  followed  by  Newman  v.  Commonwealth,  34 
P.  L.  J.,  313,  which  made  the  same  interpretation  of  the 
Pennsylvania  statute,  but  held  that  certain  of  the  facts  here 
showed  intimidation,  such  as  the  presence  of  men  with  fire- 
arms and  large  bands  of  music,  arriving  at  night  and  waking 
the  employees,  all  attended  with  some  destruction  of  prop- 
erty. So  in  Wick  China  Co.  v.  Brown  (in  1894),  30  Atl.,  261, 
an  injunction  was  granted  against  members  of  a  labor  union 
in  New  Jersey  from  combining  to  prevent  by  force,  threats, 
following,  or  ridicule  the  plaintiff's  employees  from  working. 

'*  Thus  in  Carew  v.  Rutherford,  106  Mass.,  1,  damages 
were  awarded  a  stone-cutter  whose  workmen  were  persuaded 


216         HANDBOOK    TO    TIIK    LABOU    LAW 

writer  ventures  to  predict  that  such  will  be  the 
ultimate  position  of  American  courts  on  this 
point,  in  the  absence  of  any  complication  of  a 
receivership  or  federal  statute.  (See  §§  65,  66.) 
Sfafutes  ReJating  to  Strikes. — In  England,  by 
Chapter  31  of  3-i  and  35  Victoria,  "  the  purposes 
of  any  trade  union  shall  not  by  reason  merely 
that  they  are  in  restraint  of  trade  be  deemed 
unlawful  so  as  to  render  any  member  liable  to 
criminal  prosecution  for  conspiracy  or  other- 
wise." It  was  held  in  the  case  of  Queen  v.  Bunn, 
above  discussed,  that  this  statute  did  not  in 
other  respects  affect  the  old  common  law  of 
conspiracy,  but  only  applied  to  combinations 
for  purposes  in  restraint  of  trade.  Accordingly 
the  act  of  1875  (38  and  39  Yict.,  C.  86)  was 
passed  declaring  that  "  any  agreement  or  combi- 
nation of  two  or  more  persons  to  do  or  procure 
to  be  done  any  act  in  contemplation  or  fiu'ther- 


to  leave  for  the  purpose  of  forcing  him  to  pay  a  fine  levied 
by  the  labor  association  for  employing  non-union  men.  In 
Commonwealth  v.  Curran  (1869),  3  Pittsburgh  Rep.,  143,  the 
defendant  was  convicted  for  conspiring  to  force  the  plaintiff 
to  employ  the  defendant  himself  in  his  colliery  by  causing 
the  other  workmen  to  strike  or  leave  work;  an  exceptional 
state  of  facts  which  makes  the  case  a  peculiarly  interesting 
one.  The  motive  of  benefit  to  the  defendant  was  here  most 
clear  ;  logically,  therefore,  the  case  would  now  be  wrong  ;  and 
yet  it  is  certain  that  such  combinations  to  control  the  action 
of  another  to  one's  so  evidently  selfish  interest  can  hardly  be 
permitted. 


OF   THE   UNITED   STATES  217 

ance  of  a  trade  dispute  between  employers  and 
workmen  shall  not  be  indictable  as  a  conspiracy 
if  such  act  committed  by  one  person  would  not 
be  punishable  as  a  crime."  ^     This   statute   is 

^5 "  The  Conspiracy  and  Protection  of  Property  Act, 
1875." 

§  3.  "  An  agreement  or  combination  by  two  or  more  persons 
to  do  or  procure  to  be  done  any  act  in  contemplation  or  fur- 
therance of  a  trade  dispute  between  employers  and  workmen 
shall  not  be  indictable  as  a  conspiracy  if  such  act  committed 
by  one  person  would  not  be  punishable  as  a  crime. 
Nothing  in  this  section  shall  affect  the  law  relating  to  riot, 
unlawful  assembly,  breach  of  the  peace,  or  sedition,  or  any 
offence  against  the  state  or  the  sovereign.  ...  A  crime  for 
the  purpose  of  this  section  means  an  offence  punishable  on 
indictment,  or  an  offence  which  is  punishable  on  summary 
conviction.  .  .  .  Where  a  person  is  convicted  of  any 
such  agreement  or  combination  as  aforesaid  to  do  or  procure 
to  be  done  an  act  wliich  is  punishable  only  on  summary  con- 
viction, and  is  sentenced  to  imprisonment,  the  imprisonment 
shall  not  exceed  three  months,  or  such  longer  time,  if  any, 
as  may  have  been  prescribed  by  the  statiite  for  the  punish- 
ment of  the  said  act  when  committed  by  one  person.     .     . 

§  5.  "  Where  any  person  wilfully  and  maliciously  breaks  a 
contract  of  service  or  of  luring,  knowing  or  having  reasonable 
cause  to  believe  that  the  probable  consequences  of  his  so 
doing,  either  alone  or  in  combination  with  others,  will  be  to 
endanger  human  life,  or  cause  serious  bodily  injury,  or  to  ex- 
pose valuable  property  whether  real  or  personal  to  destruction 
or  serious  injury,  he  shall  ...  be  liable  either  to  pay  a 
penalty  not  exceeding  twenty  pounds,  or  to  be  imprisoned  for 
a  term  not  exceeding  three  months,  with  or  without  hard 
labour." 

§  7.  "  Every  person  who,  with  a  view  to  compel  any  other 
person  to  abstain  from  doing  or  to  do  any  act  which  such  other 


I 


218       iiAxnnooK  to  tiik  lahou  law 

very  sweeping,  aud  would  almost  seem  to  do 
away  with  the  law  of  conspiracy  in  trade  dis- 
putes. Nevertheless  the  act  appears  ambigiious 
in  one  particular  :  suppose  a  conspiracy  not  to 
perform  some  definite  act,  but  to  ruin  the  trade 
of  a  pei*son  with  whom  the  strikers  are  at  en- 
mity.    Such   a   conspiracy  would   undoubtedly 


person  haj?  a  legal  right  to  do  or  abstain  from  doing,  wrong- 
fully and  without  legal  authority — 

1.  Uses  violence  to  or  intimidates  such  other  person  or 

his  wife  or  children,  or  injures  his  property  ;  or, 

2.  Persistently   follows  such  other  person  about    from 

place  to  place  ;  or, 

3.  Hides  any  tools,  clothes,  or  other  property  owned  or 

used  by  such  other  person,  or  deprives  him  of  or 
hinders  him  in  the  use  thereof  ;  or, 

4.  Watches  or  besets  the  house  or  other  place  where 

such  other  person  resides,  or  works,  or  carries  on 
business,  or  happens  to  be,  or  the  approach  to  such 
house  or  place,  or 

5.  Follows  such  other  person  with  two  or  more  other 

persons  in  a  disorderly  manner  in  or  through  any 
street  or  road,  shall,  on  conviction  thereof  by  a 
court  of  summary  jurisdiction,  or  on  indictment  as 
hereinafter  mentioned,  be  liable  either  to  pay  a  pen- 
alty not  exceeding  twenty  pounds,  or  to  be  im- 
prisoned for  a  term  not  exceeding  three  months, 
with  or  without  hard  labour. 
Attending  at  or  near  the  house  or  place  where  a  person 
resides,  or  works,  or  carries  on  business,  or  happens 
to  be,  or  the  approach  to  such  house  or  place,  in 
order  merely  to  obtain  or  communicate  information, 
shall  not  be  deemed  a  watching  or  besetting  within 
the  meaning  of  this  section." 


OF   THE    UNITED   STATES  219 

be  unlawful  at  common  law,  and  still  does  not 
appear  to  be  covered  by  the  words  of  the  statute. 
Mr.  Gladstone  in  a  speech  of  December  10, 1891, 
at  the  opening  of  the  National  Liberal  Federa- 
tion Conference,  urged  the  total  abolition  of  the 
common  law  against  conspiracy  and  stated : 
"  Nothing  must  be  a  crime  which  relates  to  the 
prosecution  of  labor  interests,  or  because  it  is 
done  by  a  combination  of  men,  unless  it  is  an 
oifence  against  the  letter  and  spirit  of  the  law," 
And  this  is  a  correct  statement  of  the  tendency 
of  legislation  in  England.  In  this  country  the 
legislatures  have  not  gone  so  far.  In  Maryland 
alone  has  the  English  statute  been  precisely 
copied  in  the  following  words  (Art.  27,  §  31) : 
"  An  agreement  or  combination  by  two  or  more 
persons,  to  do,  or  procure  to  be  done,  any  act  in 
contemplation  or  fiu'therance  of  a  trade  dispute 
between  employers  and  workmen,  shall  not  be 
indictable  as  a  conspiracy,  if  such  act,  committed 
by  one  person,  would  not  be  punishable  as  an 
offence ;  nothing  in  this  section  shall  affect  the 
law  relating  to  riot,  uula^vful  assembly,  breach  of 
the  peace,  or  any  offence  against  any  person  or 
against  property." 

But  in  Montana,  also  Minnesota  (6423),  the 
law  of  criminal  conspiracy  is  strictly  limited  by 
statute  (see  §  58),  the  common  law  of  the  sub- 
ject repealed,  and  it  is  further  expressly  enacted 
in  Montana  that  its  provisions  shall  "  not  apply 


2:20         HANDBOOK    TO    THE    LABOR    LAW 

to  any  arrangement,  agreement  or  combination 
between  laborers  made  -with  the  object  of  lessen- 
ing their  hours  of  work  or  increasing  wages,  nor 
to  persons  engaged  in  agriculture  or  horticulture 
with  a  view  of  embracing  the  price  of  their 
products."     (Mon.  P.  C,  325.) 

So  in  Minnesota  and  Oklahoma,  the  common 
law  of  conspiracy  appears  to  be  repealed ;  and 
even  in  the  conspiracies  still  recognized  by 
statute  some  overt  act  is  necessary.  (Minn., 
6425;  Okla.,  1893,  2063.) 

The  New  York  statute  rather  implies  that  cer- 
tain strikes  may  be  illegal ;  ^®  and  for  other 
similar  statutes,  see  §  58,  notes. 

^*  "  A  person  who  wilfully  and  maliciously,  either  alone  or 
in  combination  with  others,  breaks  a  contract  of  service  or 
hiring,  knowing  or  having  reasonable  cause  to  believe  that 
the  probable  consequence  of  his  so  doing  will  be  to  endanger 
human  life,  or  to  cause  grievous  bodily  injury,  or  to  expose 
valuable  property  to  destruction  or  serious  injury,  is  guilty  of 
a  misdemeanor,  .  .  .  but  nothing  in  this  code  contained 
shall  be  so  construed  as  to  prevent  any  person  from  demand- 
ing an  increase  of  wages,  or  from  assembling  and  using  all 
lawful  means  to  induce  employers  to  pay  such  wages  to  all 
persons  employed  by  them,  as  shall  be  a  just  and  fair  com- 
pensation for  services  rendered."     N.  Y.  P.  C,  673,  675. 

In  Pennsylvania  any  laborers  or  employees  acting  either  as 
individuals  or  as  members  of  any  union  may  refuse  to  work 
for  any  person  whenever  in  their  opinion  the  Avages  paid  are 
insufficient  or  the  treatment  unjust  or  offensive,  or  the  con- 
tinued labor  by  them  would  be  contrary  to  the  rules  of  any 
union,  etc.,  without  subjecting  such  persons  to  prosecution  for 
criminal  conspiracy  :  Provided  that  this  shall  not  prevent  the 


OF   THE   UNITED   STATES  221 

§  56.  Lockouts — A  lockout  is  the  general  dis- 
ckarge  of  bis  laborers  by  an^  employer,  and  is 
consequently  the  opposite  of  a  strike.  As  lock- 
outs are  of  rare  occurrence,  being  commonly 
provoked  only  by  strikes,  and  as  they  are  not 
attended  with  disorder,  intimidation  or  other 
objectionable  and  usual  consequences,  there  are 
very  few  cases  on  the  subject  and  no  statutes.  Of 
course  an  employer  hiring  his  laborers  for  no 
definite  time  has  an  absolute  right  to  discharge 
them  at  any  time  without  notice  in  the  same 
manner  that  the  laborers  have  a  right  to  leave. 
(For  statutes  requiring  mutual  notice,  etc.,  see 
§  22  above.)  The  only  point  on  which  the  law 
concerning  lockouts  needs  discussion  is  whether  aT 
combination  of  employers  to  lockout,  or  a  sym- 
pathetic locknnt,  having  for  its  object  them^nry 
of  the  employees  of  one  or  more  of  them,  would 
be  an  unlawful  conspiracy.  If  sympathetic 
strikes  are  held  to  be  unlawful,  the  same  rule 
should  doubtless  be  applied  to  lockouts.  There- 
is  no  such  combination,  as  a  rule,  among  em- 
ployers in  labor  disputes  as  there  is  among  em- 
ployees ;  being  in  competition  with  each  other, 
they  are  commonly  ready  enough  to  profit  by 

prosecution  under  any  law  other  than  conspiracy  of  any  per- 
son who  shall  by  the  use  of  force,  threats,  or  menace  of  harm 
to  person  or  property  hinder  persons  who  desire  to  labor 
from  so  doing,  or  conspire  to  commit  a  felony.  Pa.  Dig.,  p. 
2019. 


222         HANDBOOK    TO   TTIK   LABOR   LAW 

a  strike  directed  against  one  of  their  number. 
Nevertheless,  if  it  should  happen,  the  same  rule 
must  be  applied  to  employers  that  is  applied  to 
employees.  Consequently  if  the  sympathetic 
strike  is  held  unlawful,  the  sympathetic  lockout 
is  to  Jbe  held  unlawful  also. 

In  the  last  section  we  have  attempted  to  set 
forth  the  reasons  for  believing  that  ultimately 
the  courts  will  refuse  to  consider  even  sympa- 
thetic strikes  unlawful  conspiracies,  except  when 
the  case  is  complicated  by  the  peculiar  provi- 
sions of  some  statutes  like  the  Anti-Trust  law 
or  the  Interstate  Commerce  law.  And  so,  under 
these  there  is  no  doubt  that  if,  in  the  Chicago 
strike  of  1894,  the  railroads  had  combined  to 
discharge  all  their  workmen  in  order  to  bring 
the  striking  employees  to  terms,  and  thereby 
stop  the  running  of  their  roads,  they  would  have 
been  liable  criminally  and  to  process  of  injunc- 
tion in  the  same  manner  that  the  striking  em- 
ployees were  liable.  In  fact  this  Avas  directly 
set  forth  in  Judges  Woods's  and  Grosscup's 
charges  to  the  grand  jury.^ 

§  57.  Boycotting. — The  subject  of  unlawful 
conspiracies  has  been  so  far  discussed  already  in 
the  sections  upon  trades  unions  and  strikes 
(sections  51,  54,  55),  that  the  ground  is  largely 

'  U.  S.  V.  Debs,  64  F.  R.,  725  ;  62  F.  R.,  832. 


OF   THE   UNITED   STATES  223 

cleared  for  a  discussion  of  this  difficult  subject. 
The  reader  will  remember  the  definition  of  un- 
lawful conspiracies  given  in  §  55,  from  which  it 
appeared  that  this  is  a  matter  wherein  the  intent 
becomes  of  importance,  that  a  combination  pri- 
marily to  injure  a  definite  person  or  class  of 
persons  is  an  unlawful  conspiracy,  though  none 
of  the  acts  committed  in  carrying  it  out  are 
unlawful  in  themselves ;  still  more,  of  course, 
when  the  acts  in  themselves  are  unlawful.  The 
prime  question  in  the  law  of  boycott  is  that  of 
intent.  Was  the  intent  primarily  to  injure 
another  person,  to  molest  him,  or  to  control  him 
in  his  lawful  rights  and  liberties  ;  or  was  it  a 
combination,  by  doing  acts  which  the  persons 
combining  had  lawful  right  to  do,  primarily  to 
better  their  own  condition  by  getting  the  em- 
ployer to  alter  his  conduct  in  relation  to  the 
persons  combining  themselves  ?  It  may_be  said 
in  the  beginning  that,  just  as  simple  ■&trike»  are 
nearly'  always  lawful,  so  boycotts  are  nearly^  al- 
ways  unlawful.  It  is_diflicult  to  conceive  of  a 
boycptt  condncipxl  solely  by  lawful  ants,  and  wjth 
the  sole  object  of  benefiting  the  persons  actual- 
ly J;aMng_^iaji,JbiMbhe_^eason_JlmiLja^^  the 
only  lawful  act  the  persons  combining  can  do 
which  has  relation  to  their  employers  solely,  is 
to  refuse  to  work  for  him.  And  this  falls  at  once 
under  the  head  of  strike.  So,  when  they  peace- 
ably persuade  others  not  to  work  for  him,  and 


'224:         HAXDBOOK    TO    THE    LABOR   LAW 

establish  a  reasonable  patrol  or  picket  about  his 
place  of  employmeut  in  so  doing,  this  falls  under 
the  technical  head  of  picketing  (see  §  60),  which 
is  one  of  the  usiial~a^^micts  of  a^strike.  But 
boycotts,  or  unlawful  conspiracies,  commonly 
entitle  persons  actually  injui-ed  to  damages  ; 
they  may  be  restrained  by  injunction,  and  they 
subject  the  members  thereof  to  criminal  liabil- 
ity, whether  any  act  be  done  or  any  injury  ac- 
tually result  to  the  public  or  not. 

The  word  "  boycott  "  itself  is  of  recent  discov- 
ery, but  the  thing  has  existed  from  time  imme- 
morial.^ As  is  well  remembered,  the  word  arose 
from  the  efforts  of  certain  Irish  tenants  to  ex- 
clude Captain  Boycott  from  all  intercourse  with 
his  neighbors,  because  he  endeavored  lawfully 
to  collect  his  rents,  and  is  thus  defined  in  the  later 
similar  case,"^  "threatening  to  cut  off  from  all 
social  intercourse  and  connection,  intercourse  and 
dealings  in  the  way  of  business,  and  to  shun  as 
if  affected  with  a  loathsome  disease  and  hold  up 
to  public  hatred  and  contempt,  and  to  subject  to 
annoyance,  injur}-,  and  loss  in  the  pursuit  of  his 
lawful  occupation  and  industry,  any  tenant," 
etc.,  who  would  pay  his  rent.  This  it  will  be 
seen  was  a  conspiracy  unlawful  under  both 
branches  of  the  definition  given  in  §  55  ;  for  it 


'  See  below,  p.  246,  the  Abbot  of  Lilleshall's  case. 
5  Reg.  V.  Parnell,  14  Cox  C.  C,  508. 


OF   THE   UNITED   STATES  225 

was  both  a  conspiracy  with  an  unlawful  pui*pose, 
to  wit,  to  prevent  certain  third  persons  from  ful- 
filling a  contract,  and  carried  on  by  unlawful 
means,  to  wit,  intimidation  ;  but  either  one  of 
these  elements  of  illegality  would  have  been 
sufficient. 

We  use  the  word  "  boycott "  as  meaning  exclu- 
sively an  unlaicful  conspiracy,  and  it  may  be  well 
to  enumerate  some  of  the  combination  which 
have  been  held  as  such.     Such  are  : 

A  combination  to  compel,  by  preventing  his 
obtaining  employment,  a  member  of  a  labor 
union  to  pay  a  fine  assessed  against  him  for 
working  in  a  mill  where  steam  machinery  was 
used,  against  the  rules  of  the  society  of  the  de- 
fendants known  as  "The  Philanthropic  Society 
of  Coopers."  ^  In  this  case  the  fine  could  not 
have  been  collected  at  law,  so  the  purpose  was 
illegal,  and  also  the  means,  which  were,  general- 
ly, intimidation. 

A  combination  to  molest  or  obstruct  an  em- 
ployer or  other  person  in  the  conduct  of  his 
business  or  afikirs ;  *  and  the  law  is  the  same 
although  the  combination  is  not  by  laborers  and 
no  labor  question  is  involved.  The  words  "mo- 
lest "  or  "  obstruct  "  are  the  words  of  the  English 
statute  existing  at  the  time  which  prevented  such 

'^  Reg.  V.  Hewitt,  5  Cox  C.  C,  162. 

^Reg.  V.  Druitt,  10  Cox  C.  C,  592;  People  v.  Petheram, 
64  Mich.,  252. 

15 


"J^Q        HANDBOOK    TO   THE   LABOR   LAW 

combinations,  but  in  this  particular  the  statute 
merely  declares  the  common  law;  thus,  Lord 
Bramwell,  in  deciding  the  case,  speaks  as  fol- 
lows :  "  Having  made  those  general  remarks,  he 
would  make  another,  which  was  also  familiar  to 
all  Englishmen — namely,  that  there  was  no  right 
in  this  country  under  our  laws  so  sacred  as  the 
right  of  personal  liberty.  No  right  of  property 
or  capital,  about  which  there  had  been  so  much 
declamation,  was  so  sacred  or  so  carefully 
guarded  by  the  law  of  this  land  as  that  of  per- 
sonal liberty,  .  .  .  But  that  liberty  was  not 
liberty  of  the  body  only.  It  was  also  a  liberty 
of  the  mind  and  will ;  and  the  liberty  of  a  man's 
mind  and  will,  to  say  how  he  should  bestow 
liimseK  and  his  means,  his  talents,  and  his  in- 
dustry, was  as  much  a  subject  of  the  law's  pro- 
tection as  was  that  of  his  body.  Generalh' 
speaking,  the  way  in  which  people  had  endeav- 
ored to  control  the  operation  of  the  minds  of 
men  was  by  putting  restraints  on  their  bodies, 
and  therefore  we  had  not  so  many  instances  in 
which  the  liberty  of  the  mind  was  vindicated  as 
was  that  of  the  body.  Still,  if  any  set  of  men 
agree  among  themselves  to  coerce  that  liberty  of 
mind  and  thought  by  compulsion  and  restraint, 
they  would  be  guilty  of  a  criminal  offence, 
namely,  that  of  conspiring  against  the  liberty  of 
mind  and  freedom  of  will  of  those  toward  whom 
they  so  conducted  themselves.    He  was  referring 


OF   THE   UNITED   STATES  227 

to  coercion  or  compulsion — something  that  was 
unpleasant  and  annoying  to  the  mind  operated 
upon ;  and  he  laid  it  down  as  clear  and  un- 
doubted law,  that  if  two  or  more  persons  agreed 
that  they  would  by  such  means  co-operate  to- 
gether against  that  liberty,  they  would  be  guilty 
of  an  indictable  offence.  The  public  had  an 
interest  in  the  way  in  which  a  man  disposed  of 
his  industry  and  his  capital ;  and  if  two  or  more 
persons  conspired  by  threats,  intimidation,  or 
molestation  to  deter  or  influence  him  in  the  way 
in  which  he  should  employ  his  industry,  his 
talents,  or  his  capital,  they  would  be  guilty  of  a 
criminal  offence.  That  was  the  common  law  of 
the  land." 

These  words  of  Lord  Bram well's  are  the  best 
expression  of  the  English  law  to  be  found  in  the 
cases,  and  may  be  well  compared  with  the  deci- 
sion of  Judge  Taft  in  the  Cincinnati  Superior 
Court,  in  a  recent  case  which  has  already  been 
much  quoted  in  this  country.^  In  that  case  it 
was  decided  that  a  combination  by  a  trades  union 
to  coerce  an  employer  to  conduct  his  business, 
with  reference  to  apprentices  and  the  employ- 
ment of  delinquent  members  of  the  union,  accord- 
ing to  the  demand  of  the  union,  by  injuring  his 
business  through  notices  sent  to  his  customers 


» Moores  &  Co.  v.  Bricklayers'  Union,  23  Wkly.  L.  B.  (O.), 
48. 


228        HANDBOOK    TO   THE   LABOR   LAW 

and  material  men,  stating  that  any  dealings  with 
him  would  be  followed  by  similar  measm-es 
against  them,  was  an  unlawful  conspiracy.  The 
judge  in  the  lower  court  made  the  following 
charge  : 

"  The  defendant  union  claims  to  be  an  organ- 
ization composed  of  journeyman  bricklayers,  one 
of  whose  objects  is  the  bettering  of  their  con- 
dition by  united  action  on  the  subject  of  wages, 
and  the  admission  of  apprentices  into  their  craft. 
It  becomes  necessary  to  define  what  action  they 
may  legally  take  to  carry  out  such  purposes. 
They  may,  by  mutual  agreement,  provide  for 
and  impose  penalties  for  the  failure  of  any  of 
their  members  to  comply  with  such  regulations 
in  respect  of  these  purjDOses  as  their  association 
makes.  They  may  unite  in  withdrawing  from 
the  employ  of  any  persons  whose  terms  of  em- 
ployment may  not  be  satisfactory  to  them,  or 
whose  actions  with  regard  to  apprentices  are  not 
to  their  liking.  Beyond  this  they  cannot  go,  to 
compel  their  employers  to  come  to  their  terms. 
If,  in  addition  to  withdrawing  from  his  employ- 
ment, they  combine  together  to  coerce  their  em- 
ployer to  come  to  their  terms,  and  so  interfere 
with  his  business  by  frightening  persons  from 
selling  to  him,  or  buying  from  him,  or  contract- 
ing with  him,  by  threats  of  a  withdrawal  of  union 
workmen  from  the  employment  of  such  persons, 
i.e.,  by  boycotting  him,  they  become  engaged  in 


OF   THE    UNITED    STATES  229 

an  unlawful  conspiracy,  and  are  liable  to  the  em- 
ployers for  any  injury  arising  therefrom.  .  .  ." 
The  argument  for  the  defendant  was  as  follows : 
"  A  conspiracy  is  a  combination  of  two  or  more 
persons  to  do  an  unlawful  act  or  a  lawful  act  by 
unlawful  means.  It  follows  that  there  is  no  con- 
spiracy unless,  either  in  its  end  or  in  its  course, 
the  combination  is  to  do  an  unlawful  act.  Every 
man  may  dispose  of  his  labor  by  such  contract 
and  to  such  persons  as  he  pleases.  He  may 
refuse  to  contract  with  any  man  or  class  of  men. 
If  he  chooses  not  to  work  for  any  person  using 
materials  of  a  certain  dealer,  that  is  his  right. 
What  he  may  lawfully  do  he  may  lawfully  an- 
nounce his  intention  of  doing.  Therefore,  he 
may  notify  his  possible  employers  of  his  inten- 
tion not  to  work  for  any  man  using  material  of 
such  dealer.  As  these  are  acts  all  within  his 
right  and  laAvful,  he  may  combine  with  others  to 
do  them,  and  such  combination  being  only  to  do 
lawful  acts,  is  not  a  conspiracy  and  is  not  action- 
able." But  Judge  Taft  in  his  opinion  went  on 
to  say  :  "If  this  argument  is  sound,  the  charge 
was  erroneous.  ...  It  assumes  two  propo- 
sitions :  first,  that  no  act  generally  lawful  can 
become  unlawful  or  actionable  by  reason  of  the 
motive  or  intent  with  which  it  is  done ;  and 
second,  that  nothing  which  is  not  actionable  when 
done  by  one  person,  can  be  actionable  or  unlaw- 
ful when  done  by  a  combination  of  persons.    In 


230        HANDBOOK    TO   THE   LABOR   LAW 

our  opinion  botli  of  these  propositions  are 
erroneous. 

"  We  are  dealing  in  this  case  with  common 
rights.  Every  man,  be  he  capitalist,  merchant, 
employer,  laborer,  or  professional  man,  is  en- 
titled to  invest  his  capital,  to  carry  on  his  busi- 
ness, to  bestow  his  labor,  or  to  exercise  his 
calling,  if  within  the  law,  according  to  his  pleas- 
ure. Generally  speaking,  if,  in  the  exercise  of 
such  a  right  by  one,  another  suffers  a  loss,  he 
has  no  ground  of  action.  Thus,  if  two  mer- 
chants are  in  the  same  business  in  the  same 
place,  and  the  business  of  the  one  is  injured 
by  the  competition,  the  loss  is  caused  by  the 
other's  pursuing  his  lawful  right  to  carry  on 
business  as  seems  best  to  him.  In  this  legiti- 
mate clash  of  common  rights,  the  loss  which  is 
suffered,  is  damnum  absque  injuria. 

"  But  on  this  common  ground  of  common 
rights  where  everyone  is  lawfully  struggling  for 
the  mastery,  and  where  losses  suffered  must  be 
borne,  there  are  losses  wilfully  caused  to  one 
by  another  in  the  exercise  of  what  otherwise 
would  be  a  lawful  right,  from  simple  motives 
of  malice.     .     .     . 

"In  the  exercise  of  common  rights,  like  the 
pursuits  of  a  business,  or  a  trade,  which  result 
in  a  mutual  interference  and  loss,  such  loss  is 
a  legal  injury,  or  not,  according  to  the  intent 
with  which   it   has  been  caused,  and  the  pres- 


OF  THE   UNITED   STATES  231 

ence   or  absence  of  malice  in  the  person  caus- 
ing it.     .     .     . 

"  The  immediate  motive  of  defendants  here 
was  to  show  to  the  building  world  what  punish- 
ment and  disaster  necessarily  followed  a  defi- 
ance of  their  demands.  The  remote  motive  of 
wishing  to  better  their  condition  by  the  power 
so  acquired,  will  not,  as  we  think  we  have 
shown,  make  any  legal  justification  for  de- 
fendants' acts. 

"The  discussion  up  to  this  point  has  ignored 
the  element  of  combination  in  the  acts  of  the 
defendants.  But  such  cases  can  rarely,  if  ever, 
arise,  because  the  power  of  a  single  individual 
to  put  into  operation  such  a  chain  of  causes  as 
are  necessary  to  inflict  loss  is  hardly  to  be 
conceived.  The  combination  of  individuals  to 
efi'ect  such  a  purpose  is  generally  indispensable 
to  its  success.  In  the  Mogul  Steamship  Com- 
pany V.  Macgregor,^  supra,  Bowen,  Lord  Jus- 
tice, says,  '  of  the  general  proposition  that  cer- 
tain kinds  of  conduct,  not  criminal  in  any  one- 
individual,  may  become  criminal  if  done  by 
combination  among  several,  there  can  be  no 
doubt.  The  distinction  is  based  on  sound  rea- 
son, for  a  combination  may  make  oppressive 
or  dangerous  that  which,  if  it  proceeded  only 
from  a  single  person,  would  be  otherwise  ;  and 

•L.  R.  23,  Q.  B.  D.,  598  ;  66  L.  T.,  1. 


232        HANDBOOK   TO   THE   LABOR   LAW 

the  very  fact  of  the  combination  may  show 
that  the  object  is  simply  to  do  harm,  and  not 
to  exercise  one's  own  just  rights.'  In  Gregory 
V.  Duke  of  Brunswick,'  Coltman,  J.,  says,  'It 
is  to  be  borne  in  mind  that  the  act  of  hissing  in 
a  public  theatre  is  prima  facie  a  lawful  act,  and 
even  if  it  should  be  conceded  that  such  an  act, 
though  done  without  concert  with  others,  if  done 
from  a  malicious  motive,  might  furnish  a  ground 
of  action,  yet  it  would  be  difficult  to  infer  such 
a  motive  from  the  isolated  acts  of  one  person 
unconnected  wdth  others.'  It  is  thus  apparent 
that  in  determining  whether  a  concerted  act,  or 
series  of  acts,  like  those  at  bar,  are  actionable, 
the  combination  is  material  in  two  ways  :  first,  in 
giving  the  act  a  different  character  from  a  similar 
act  of  an  individual  by  reason  of  its  greater, 
more  dangerous,  and  oppressive  effect ;  and  sec- 
ond, in  being  strong  evidence  of  the  malice  with 
•which  the  act  is  done." 

Another  leading  case  is  that  of  State  v.  Stew- 
•  art,*  decided  in  1887.  This  was  an  indictment 
for  conspiracy  against  certain  persons,  granite 
cutters,  but  not  in  the  employ  of  the  Ryegate 
Granite  Works,  for  conspiring  to  prevent  the 
Ryegate  Granite  Works  from  retaining,  or  tak- 
ing into  its  employment,  one  James  O'Rourke 
and  others,  also  granite  cutters,  to  the  damage 

1(5  Man.  and  Gr.,  953.  «59  Vt.,  273. 


OF   THE   UNITED   STATES  233 

of  the  Ryegate  Granite  Works,  and  of  said 
O'Rourke  and  others.  The  purpose  was  to 
coerce  the  Ryegate  Granite  Works  to  conform 
to  the  rules  of  the  National  Stone  Cutters' 
Union.  The  method  charged  was  intimidation 
of  O'Roui'ke  and  the  others,  who  were  then  in 
the  employ  of  the  Ryegate  Granite  Works,  by 
threats  that  the  works  would  be  declared  by 
them  to  be  "  scab "  works,  and  that  they 
(O'Rourke  and  the  others)  would  be  published 
in  the  Granite  Cutters  Journal  as  "  scabs."  The 
court  said  in  their  opinion  :  "  It  is  clear  to  a 
demonstration  that  a  combination  of  the  charac- 
ter set  forth  in  these  counts  was  a  conspiracy 
at  the  common  law  ;  and,  further,  that  the  sub- 
ject-matter of  the  offence  being  the  same  in  this 
country  as  in  England,  namely,  an  interference 
with  the  property  rights  of  third  persons,  and 
a  restraint  upon  tlie  lawful  prosecution  of  their 
industries,  as  well  as  an  unlawfiil  control  over 
the  free  use  and  employment  by  workmen  of 
their  own  personal  skill  and  labor,  at  such  times, 
for  such  prices,  and  for  such  persons  as  they 
please,  the  common  law  of  England  is  '  appli- 
cable to  our  local  situation  and  circumstances 
in  this  behalf,'  and  is,  therefore,  the  common 
law  of  Vermont.     .     .     . 

"  Suppose  the  members  of  a  Bar  Association 
in  Caledonia  County  should  combine  and  de- 
clare that  the  respondents  should    employ  no 


234  IIAXDBOOK    TO    THE    LABOR    LAW 

attorney,  not  a  member  of  such  association,  to 
assist  them  in  their  defence  in  this  case,  under 
the  penalty  of  being  dubbed  a  "  scab,"  and  hav- 
ing his  name  paraded  in  the  public  press  as 
unworthy  of  recognition  among  his  brethren, 
and  himself  brought  into  hatred,  envy,  and  con- 
tempt, would  the  respondents  look  upon  this  as 
an  innocent  intermeddling  with  their  rights 
under  the  law  ?     .     .     . 

"  Such  combinations  are  equally  illegal 
whether  they  promote  objects  or  adopt  means 
that  are  per  se  indictable  ;  or  promote  objects  or 
adopt  means  that  are  j^er  se  oppressive,  immoral, 
or  wrongfully  prejudicial  to  the  rights  of  others. 

"  If  they  seek  to  restrain  trade,  or  tend  to 
the  destniction  of  the  material  prosperity  of 
the  country,  they  work  injury  to  the  whole  pub- 
lic.    .     .     . 

"  The  principle  upon  which  the  cases,  English 
and  American,  proceed  is,  that  every  man  has 
the  right  to  employ  his  talents,  industry,  and 
capital  as  he  pleases,  free  from  the  dictation  of 
others  ;  and  if  two  or  more  persons  combine  to 
coerce  his  choice  in  this  behalf,  it  is  a  criminal 
conspiracy.  The  labor  and  skill  of  the  work- 
man, be  it  of  high  or  low  degree,  the  plant  of 
the  manufacturer,  the  equipment  of  the  farmer, 
the  investments  of  commerce,  are  all  in  equal 
sense  property.  .  .  .  And  while  such  con- 
spiracies  may  give   to  the   individual  directly 


OF   THE   UNITED   STATES  235 

affected  by  them  a  private  right  of  action  for 
damages,  they  at  the  same  time  lay  a  basis  for 
an  indictment  on  the  ground  that  the  state  it- 
self is  directly  concerned  in  the  promotion  of 
all  legitimate  industries  and  the  development  of 
all  its  resources,  and  owes  the  duty  of  protection 
to  its  citizens  engaged  in  the  exercise  of  their 
callings.  The  good  order,  peace,  and  general 
prosperity  of  the  state  are  directly  involved  in 
the  question." 

These  may  be  considered  the  leading  modern 
cases  on  the  boycott,  but  other  instances  where 
the  English  courts  have  held  that  there  was  a 
boycott,  and  granted  civil  or  criminal  redress, 
will  be  found,  arranged  for  the  most  part  chrono- 
logically, in  the  note.* 

9  An  indictment  was  sustained  both  under  the  statute  of  6 
George  IV.,  c.  129,  referred  to  above,  and  for  common  law- 
conspiracy,  against  the  defendants,  all  members  of  a  society 
called  Philanthropic  Society  of  Coopers.  One  Charles 
Evans,  a  member  of  the  society,  having  done  four  days' 
work  in  a  yard  where  steam  machinery  was  employed,  waa 
fined  by  the  society  ten  pounds  under  their  rules  for  so  doing. 
He  refused  to  pay  ;  and  the  other  men  in  the  yard  then  left 
their  work  and  refused  to  return  while  Evans  was  employed. 
He  was  in  consequence  thrown  out  of  work.  Each  man  who 
left  the  yard  on  account  of  Evans  was  paid  nine  shillings  for 
his  loss  of  time  by  the  society,  in  accordance  with  its  rules. 
The  court  held  that  these  rules  were  unlawful,  and  the  funds 
of  the  society  illegally  diverted  for  that  purpose  ;  that  the 
fine  against  Evans  was  also  unlawful,  and  that  the  general 
action  of  the  defendants  amounted  to  an  unlawful  conspiracy 
to  keep  Evans  out  of  work ;  in  other  words,  what  we  are  now 


23(5        HANDBOOK    TO   THE   LABOR  LAW 

The  English  common  hiw  of  boycotting  has 
been  rather  hmited  than   extended    in  recent 

calling  a  boycott,  and  the  defendants  were  sentenced  by  Lord 
Campbell  to  various  terms  of  imprisonment.  Reg.  v.  Hew- 
itt, 5  CoiC.  C,  102  (1851). 

A  combination  of  workmen  to  induce  other  men,  although 
not  under  contract,  to  leave  their  work  for  the  purpose  of 
compelling  the  master  to  raise  their  own  wages,  as  well  as  a 
combination  to  persuade  those  under  contract  to  leave  ser- 
vice, and  a  combination  to  induce  workmen  to  leave  by  mak- 
ing them  drunk,  by  threats,  and  other  unlawful  means,  was 
held  a  criminal  conspiracy  (Reg.  v.  Duffield,  5  Cox  Cr.  C, 
404).  The  head-note  of  this  case  is  a  very  clear  statement  of 
the  law,  at  least  as  it  existed  in  England  during  the  time  the 
statute  6  George  IV.  was  in  force.     It  is  as  follows  : 

"  1st.  It  is  a  clearly  established  rule  of  law  that  workmen 
have  a  right,  while  they  are  perfectly  free  from  engagement 
and  have  the  option  of  entering  into  employment  or  not,  to 
agree  among  themselves  that  they  will  not  go  into  any  em- 
ployment unless  they  can  get  a  certain  rate  of  wages,  and 
each  man,  for  himself,  may  say,  '  I  will  not  go  into  an}'  em- 
ploy unless  I  can  get  a  certain  rate  of  wages  ; '  and  all  of 
them  may  say,  '  we  will  agree  with  one  another  that  in  our 
trade,  as  able-bodied  workmen,  we  will  not  take  employment 
unless  the  employers  agree  to  give  a  certain  rate  of  wages.' 

"2d.  But  workmen  have  no  right  to  combine  together  to 
persuade  men  already  hired  by  and  in  the  employ  of  other 
masters  to  leave  that  employment  for  the  purpose  of  com- 
pelling those  masters  to  raise  their  wages. 

"3d.  Therefore,  a  conspiracy  to  obstruct  a  manufacturer  in 
carrying  on  his  business  by  inducing  and  persuading  work- 
men who  had  been  hired  by  him  to  leave  his  service,  in  or- 
der to  force  him  to  raise  his  rate  of  wages,  or  to  make  an 
alteration  in  the  mode  of  conducting  and  carrying  on  his 
trade,  is  an  indictable  offence ;  and  an  agreement  to  induce 
and  persuade  workmen  under  contracts  of  servitude  for  a 


OF   THE    UNITED   STATES  237 

times  by  statute,  so  that  probably  all  the  cases 
iu  the  note  would  be  authorities  for  an  Ameri- 

time  certain,  to  absent  themselves  from  such  service,  is  an 
indictable  offence,  although  no  threats  or  intimidation  be 
proved,  or  any  ulterior  object  averred. 

"  4th.  Workmen  who  agree  that  none  of  those  who  make 
the  agreement  will  go  into  employment  unless  for  a  certain  rate 
of  wages,  have  no  right  to  agree  to  molest,  or  intimidate,  or 
annoy  other  workmen  in  the  same  line  of  business  who  re- 
fuse to  enter  into  the  agreement,  and  who  choose  to  work  for 
employers  at  a  lower  rate  of  wages ;  and,  semble^  such  agree- 
ment to  molest  or  intimidate  is  an  indictable  conspiracy,  as 
well  in  relation  to  workmen  willing  to  be  hired  and  em- 
ployed, as  to  those  alreadj-  liired  and  employed. 

"  8th.  If  persons  conspire  together  to  take  away  the  work- 
men of  a  manufacturer,  that  constitutes  such  an  obstruction 
and  molestation  of  hira  as  to  support  that  part  of  a  count 
which  alleges  a  conspiracy  by  molesting  and  obstructing  him." 

A  combination  of  persons  not  workmen,  but  delegates  of  a 
trade  association,  combining  to  persuade  workmen  not  under 
contract  to  leave  their  employment,  and  giving  money  to 
those  who  were  thus  rendered  idle  to  support  them,  was  held 
a  criminal  conspiracy.  Reg.  v.  Rowlands,  5  Cox  C.  C,  p. 
436. 

This  case  grew  out  of  the  same  transaction  as  the  previous 
case  of  Reg.  v.  Duffield,  and  was  decided  on  the  same  day. 
It  is  noteworthy  for  the  distinction  expressly  taken  between 
conspiracies  by  the  employees  themselves  and  those  of  other 
persons.  The  prosecutors,  Messrs.  Perry  &  Co.,  tin-plate 
manufacturers  at  Wolverhampton,  being  in  a  prosperous  con- 
dition and  in  harmony  with  all  their  workmen,  received  on 
the  2d  of  April  a  letter  from  the  "  National  Society  of  United 
Trades,"  announcing  that  there  were  dissensions  among  their 
workmen,  and  certain  delegates  proposed  to  wait  upon  them 
for  the  purpose  of  arranging  the  dissensions  which  existed 
between  them  and  their  men.     Messrs.  Perry  &  Co.  were 


238         HANDBOOK   TO   THE   LABOII    LAW 

can  court  to  follow ;  for,  though  a  few  of  them 
rest  on  the  precise  words  of  the  recent  English 

very  nmch  surprised  at  receiving  such  a  letter,  knowing  that 
there  had  beeu  no  complaint  witii  regard  to  the  empknment 
or  tiie  rate  of  remuneration  given.  They  began  to  make 
some  inquiries,  and  found  tliat,  with  the  exception  of  one 
person,  all  of  the  men  in  their  employ  had  seemed  to  agree 
with  their  masters ;  but  this  person  (one  Preston)  was  ob- 
served to  go  from  bench  to  bench  throughout  the  workshop 
and  hold  communications  with  the  men  relative  to  some  se- 
cret matters,  whereupon  Messrs.  Perry  discharged  him.  Af- 
ter that  they  were  waited  upon  by  the  delegates,  who  wished 
to  know,  in  the  first  instance,  why  Mr.  Preston  had  been  dis- 
charged, and  informed  Messrs.  Perry  that  unless  they  restored 
lum  to  work  thej'  would  take  every  man  out  of  the  manufac- 
tory ;  and  further,  that  they  had  means  of  carrying  out  that 
object,  unless  Perry  &  Co.  submitted  to  the  scale  of  prices 
which  they  then  proposed.  After  much  negotiation,  the  dele- 
gates were  informed  that  Messrs.  Perry  would  not  submit  to  be 
controlled  by  any  association  whatever,  and  the  strike  took 
place.  The  court  ruled  that,  while  workmen  had  a  right  to 
combine  for  their  own  protection  and  obtain  such  wages  as 
they  chose  to  agree  to  demand,  other  persons  not  workmen 
could  only  combine  with  them  to  assist  in  that  purpose  in  so 
far  as  it  was  a  direct  benefit  to  the  parties  combining ;  and 
moreover,  that  any  combination  to  control  a  man  in  the  con- 
duct of  his  business,  and  threaten  him  with  ruin  if  he  did  not 
abide  by  conditions,  would  be  a  criminal  conspiracy.  This 
case  also  proceeded  under  the  statute  of  George  IV. 

A  combination  of  all  the  colliers  in  a  colliery  except  seven, 
sending  a  letter  to  their  employer  that  all  workmen  would 
strike  in  fourteen  days  unless  the  seven  men  were  discharged, 
signed  "  By  order  of  the  Board  of  Directors  for  the  body  of 
coal-miners,"  was  held  unlawful  under  the  statute  of  George 
IV.      Rex.  V.  Bykerdike,  1  Moody  and  R.,  179  (1832). 

Perham's  case  (5  H.  &  N.,  30)  was  not  a  case  of  conspiracy, 


OF,  THE    UNITED    STATP^S  239 

statutes,  such  as  "  to  molest,"  "  to  obstruct,"  or 
"to    persistently    follow,"   the   English   courts 

as  it  was  an  indictment  under  the  statute  of  George  IV. 
against  Perham  alone,  at  the  prosecution  of  one  of  the  work- 
men of  Messrs  Piper  &  Son,  for  saying  to  him  and  fifteen 
other  of  Messrs.  Pipers'  workmen,  "  If  you  dare  work  we 
shall  consider  you  as  blacks,  and  when  we  go  in  we  shall 
strike  against  you,  and  strike  against  you  all  over  London  ; " 
but  it  is  interesting  as  showing  that  the  threat  of  a  strike  was 
held  sufficient  intimidation  under  the  English  statute. 

In  the  same  way  the  case  of  Wood  v.  Bowron  (L.  R.,  2  Q. 
B.,  21)  is  instructive.  Bowron  charged  the  defendants,  two 
bricklayers,  with  using  threats  under  the  statute  to  force  the 
respondent  to  limit  the  number  of  his  apprentices.  The  evi- 
dence was  that  all  his  workmen  except  two  stopped  work, 
they  not  being  under  contract,  whereupon  Bowron  wrote  to 
the  defendant  Barrow,  the  secretary  of  the  Bricklayers' 
Union,  a  letter  asking  him  to  inform  him  what  was  the  reason 
that  his  men  were  taken  away.  Barrow  answered,  by  order 
of  the  society,  that  it  had  been  voted  at  a  meeting  of  the  or- 
der of  bricklayers  that  none  of  them  would  work  for  Bowron 
until  such  time  as  he  parted  with  all  but  two  apprentices. 
The  court  held  that  this  was  a  statement  of  the  reason  of  the 
strike  contained  in  an  answer  to  a  letter,  and  consequently 
not  a  threat  under  the  statute.  This  decision  has  been  much 
criticised,  but  is  interesting  as  showing  the  necessary  refine- 
ment of  the  law  on  this  point. 

The  next  English  case  is  that  of  Walsby  v.  Anley  (7  Jurist 
N.  S.,  465),  and  this  did  not  depend  entirely  upon  the  statute  (6 
George  IV.,  Chapter  129,  §  3),  Judge  Crompton  holding  that 
a  combination  of  workmen  to  coerce  a  master  to  discharge 
fellow-workmen  was  illegal  at  the  common  law,  and  such 
combinations  were  not  specifically  allowed  by  the  exceptions 
set  forth  in  the  statute.  The  facts  were  that  the  plaintiff,  a 
builder,  had  in  his  employment  men  working  under  a  "  dec- 
laration "  pledging  them  not  to  join  in  strikes ;  that  the  de- 


24:0         HANDROOK    TO    THE    LABOR    LAW 

themselves  have  lalecl  that  this  statute  but  ex- 
pressed the  common  law ;  and  those  sections  of 


fendant,  one  of  his  workmen,  brouglit  to  him  a  paper  signed 
by  him  and  other  workmen  saying  that  the  plaintiff  "  be  given 
to  understand  that  unless  the  men  who  were  working  under 
the  declaration  he  discharged,  and  we  have  a  definite  answer 
by  dinner  time  to  that  effect,  we  cease  working  immediately." 
This  was  held  an  illegal  combination  against  the  workmen 
under  the  declaration,  and  not  saved  by  the  statute — what  we 
should  now  call  a  boycott. 

Judge  Crorapton  in  this  case  reannounced  the  rule  of  law 
so  often  referred  to  in  the  text  (see  §  .55)  in  these  words : 
"  It  is  a  well-known  rule  of  law  that  one  man  may  do  what 
may  not  be  done  by  a  number  of  persons  combined,  when  it 
tends  to  injure  another." 

The  next  case  was  that  of  Shelbourne  t\  Oliver  (13  L.  T. 
R.,  N.  S.,  630),  but  rested  solely  under  the  statute.  The  de- 
fendant was  not  him.self  in  the  employ  of  the  plaintiff,  but 
was  a  member  of  a  trades  union,  and  had  told  him  that  unless 
one  James,  who  was  the  only  man  who  had  stiiyed  to  help  the 
plaintiff  with  some  special  orders  he  had  on  hand  when  the 
strike  was  initiated,  was  discharged,  the  others  would  not  re- 
turn to  work.  Although  the  court  based  their  decision  solely 
on  the  statute,  for  the  reason  that  the  action  was  brought 
against  one  defendant  (Walsby  v.  Anley,  ut  supra),  it  is 
perfectly  clear  that  the  combination  was  an  illegal  conspiracy 
under  the  common  law. 

The  next  case  was  that  of  Skinner  v.  Kitch  (10  Cox  C.  C, 
493),  also  against  a  single  defendant.  It  was  held  that  the 
following  letter  was  an  endeavor  by  threats  to  force  a  manu- 
facturer to  limit  the  number  of  his  workmen,  etc.,  witliin 
the  meaning  of  the  statute  : 

"  Mr.  William  Kitch, 

"  Sir  :  I  am  requested  by  the  committee  of  carpenters  and 
joiners  to  give  the  men  in  your  employ  notice  to  come  out  on 


OF   THE   UXITP:D   STATES  241 

the  English  statutes  which  are  intended  to  pro- 
tect organized  labor  have  usually  not  been  cop- 
strike  against  James  Jordan,  unless  he  become  a  member  of 
the  above  society,  not  being  any  way  disrespectful  to  you  or 
him,  but  being  compelled  by  the  union  and  laws.  This 
notice  will  be  carried  out  after  the  27th  inst.,  unless  settled 
in  accordance  with  the  society's  laws. 

"  I  remain,  yours  most  respectfully, 

"  Thomas  Skinner,  Secretary." 

This  case  is  interesting  as  an  authority  for  the  principle 
that  a  combination  to  compel  an  employer  not  to  employ  non- 
union men  is  an  unlawful  conspiracy,  at  least  under  the  Eng- 
lish statute.     See  §  52. 

The  next  case,  occurring  the  same  year,  is  that  of  the 
Queen  v.  Druit,  already  discussed  above ;  and  this  casedeparts 
from  the  statute  of  George  IV.,  for  at  that  time  the  statute  of 
22  Victoria,  Chapter  34,  had  been  passed,  §  1  of  which  enacts 
that  "  no  workman  or  other  person,  etc.,  by  reason  merely  of 
his  entering  into  an  agreement  with  any  workmen,  etc.,  or 
by  reason  merely  of  his  endeavoring  peaceably  and  in  a  rea- 
sonable manner,  and  without  threat  or  intimidation,  direct  or 
indirect,  to  persuade  others  to  cease  or  abstain  from  work, 
etc.,  shall  be  deemed  or  taken  to  be  guilty  of  '  molestation ' 
or  '  obstruction  '  within  the  meaning  of  the  said  act."  And 
it  was  held  that  the  act  of  Victoria  did  not  alter  the  common 
law.  The  case  was  sent  to  the  jury,  and  the  defendants  found 
guilty  of  unlawful  conspiracy,  but  not  under  the  statute. 
This  case  is  also  one  of  the  first  authorities  on  picketing,  and 
will  be  further  discussed  in  that  connection  (see  §  60),  with 
the  following  cases  of  Reg.  v.  Shepard,  and  Reg.  v.  Bauld. 

The  next  case,  that  of  Reg.  v.  Bunn  (12  Cox  C.  C,  316; 
see  §  55),  has  been  fully  discussed  already,  and  was  rather 
a  case  of  strike  than  boycott. 

But  the  case  of  Queen  v.  Parnell  (14  Cox  C.  C,  508)  de- 
serves attention,  both  from  its  historic  interest  and  because 
16 


242         HANDBOOK    TO   THE    LABOR   LAW 

ied  in  this  country  (see  §  59).  Enough  cases 
have  been  cited  to  show  both  the  principles  of 

it  reiinnounced,  at  so  late  a  date  as  1881,  the  law  of  criminal 
conspiracy  iis  applied  to  the  hoycott,  set  forth  in  §  55  and 
above  in  this  section.  It  wa-s  an  indictment  against  Parnell 
and  otliers  for  conspiring  to  solicit  tenants  not  to  pay  rents 
for  which  tliey  were  liable  under  their  own  contracts,  which 
is  a  case  quite  indistinguishable  from  the  case  of  laborers  or 
labor  unions  conspiring  to  persuade  employees  to  break  their 
employment  contracts,  as  in  Reg.  v.  Bunn,  above  referred  to, 
except,  of  course,  so  far  as  the  law  of  such  labor  combina- 
tions has  been  modified  by  recent  English  statute.  It  was 
also  a  conspiracy  to  incite  tenants  to  retake  possession  of 
their  farms  by  force ;  but  this,  being  itself  a  criminal  offence 
at  common  law,  is  not  so  material.  The  court  based  their 
decision  probably  on  the  O'Connell  case,  which  occurred  in 
1844,  and  the  definition  of  conspiracy  given  by  the  celebrated 
commission  headed  by  Lord  Chief  Justice  Cockburn.  They 
also  approved  the  decision  of  Justice  Willes  in  the  Mulcahy 
Fenian  case  (L.  R.,  3  H.  L.,  306),  that  '^  A  conspiracy  con- 
sists in  the  agreement  of  two  or  more  to  do  an  unlawful  act, 
or  to  do  a  lawful  act  by  unlawful  means ;  "  and  go  on  to  say, 
"  By  the  terms  '  illegal  and  unlawful '  it  is  not  intended  to 
confine  the  definition  to  an  act  that  would  in  itself  be  a  crime 
or  an  offence,  but  that  law  extends  to  and  may  embrace 
many  cases  in  which  the  purposes  of  a  conspiracy,  if  done  by 
one  only,  would  not  be  a  criminal  act,  as  for  instance,  if  sev- 
eral combined  to  violate  a  private  right,  the  violation  of 
which  would  be  wrongful  if  done  by  one.  though  not  m  itself 
criminal.  If,  for  instance,  a  tenant  withholds  his  rent ;  that 
is  a  violation  of  the  right  of  his  landlord  to  receive  it :  but  it 
would  not  be  a  criminal  act  in  the  tenant,  though  it  would  be 
the  violation  of  a  right ;  but  if  two  or  more  incite  him  to  do 
that  act,  their  agreement  so  to  incite  him  is  bj*  the  law  of  the 
land  an  offence.  Conspiracy  has  been  aptly  described  as 
divisible  under  three  heads^where  the  end  to  be  attained  is 


OF   THE   UNITED    STATES  243 

the  common  law,  and  the  usual  practical  condi- 
tions and  consequences  of  a  boycotting  conspir- 

in  itself  a  crime ;  where  the  object  is  lawful,  but  the  means 
to  be  resorted  to  are  unlawful ;  and  where  the  object  is  to  do 
injury  to  a  third  party  or  to  a  class,  though  if  the  wrong  were 
effected  by  a  single  individual  it  would  be  a  wrong  but  not  a 
crime.  I  think  under  these  three  heads  every  class  of  con- 
spiracy ranks.  And,  gentlemen,  I  have  to  declare  to  you 
that  it  is  a  criminal  act  where  two  or  more  agree  to  have  a 
crime  committed ;  where  two  or  more  agree  to  effectuate  their 
object  by  unlawful  means ;  or  where  two  or  more  agree  to  do 
an  injury  to  a  third  party  or  to  a  class,  though  that  injury,  if 
done  by  any  one  alone,  of  his  own  motion,  would  not  be  in 
him  a  crime  or  an  offence,  but  would  be  simply  an  injury, 
carrying  with  it  a  right  to  civil  remedy.  The  court  also  say, 
"  This  law  of  conspiracy  is  not  an  invention  of  modern  times. 
It  is  part  of  our  common  law ;  it  has  existed  from  time  imme- 
morial." And  Justice  Barry  meets  the  frequent  contention 
that  an  act  or  purpose  should  not  make  several  persons  guilty 
of  criminal  conspiracy  when  it  would  not  be  criminal  if  done 
or  attempted  by  one  person  only,  in  the  following  words  : 

"  The  third  and  last  case  is  where,  with  a  malicious  design 
to  do  an  injury,  the  purpose  is  to  effect  a  wrong,  though  not 
such  a  wrong  as,  when  perpetrated  by  a  single  individual, 
would  amount  to  an  offence  under  the  criminal  law.  Thus  an 
attempt  to  destroy  a  man's  credit,  and  effect  liis  ruin  by 
spreading  reports  of  his  insolvency,  would  be  a  wrongful 
act  which  would  entitle  the  party  whose  credit  was  thus  at- 
tacked to  bring  an  action  as  for  a  civil  wrong,  but  it  would 
not  be  an  indictable  offence.  If  it  be  asked  on  what  prin- 
ciple a  combination  of  several  to  effect  the  like  wrongful 
purpose  becomes  an  offence,  the  answer  is,  upon  the  same 
principle  that  any  other  civil  wrong,  when  it  assumes  a  more 
aggravated  and  formidable  character,  is  constituted  an  of- 
fence, and  becomes  tranferred  from  the  domain  of  the  civil 
to  that  of  the  criminal  law.     .     .     .     Thus  the  dividing  line 


'244         irANDBOOK    TO   THE   LABOR    LAW 

acy  ;  and,  finally,  to  show  the  extreme  antiquity 
of  this   law,  we   may   quote   in  terms  a   case 


between  private  wrorifrs,  as  entitling  the  party  injured  to  civil 
remedies,  and  private  wrongs  tlnis  converted  into  pul)lic 
wrongs,  in  other  words  into  offences  and  crimes,  is  to  be 
found  in  the  more  aggravated  and  formidable  character  which 
the  violation  of  individual  riglits  under  given  circumstances 
assumes.  It  is  upon  this  principle  that  the  law  of  conspir- 
acy by  which  the  violation  of  private  right,  which  if  done  by 
one,  would  only  be  the  subject  of  civil  remedy,  when  done  by 
several  is  constituted  a  crime,  can  be  vindicated  as  necessary 
and  just.  It  is  obvious  that  a  wrongful  violation  of  another 
man's  right  committed  by  many  assumes  a  far  more  formid- 
able and  offensive  character  than  when  commited  by  a  single 
individual.  The  party  assailed  may  be  able,  by  resource  to 
the  ordinary  civil  remedies,  to  defend  himself  against  the 
attacks  of  one.  It  becomes  a  very  different  thing  when  he 
has  to  defend  himself  against  many  combined  to  do  him  in- 
jury." 

These  words  would  appear  to  contain  the  best  and  most 
comprehensive  statement  of  the  reason  of  the  subject. 

The  next  case,  that  of  Mogul  Steamship  Co.  v.  McGregor 
(66  L.  T.  R.,  N.  S.,  1 ;  L.  R.,  23,  Q.  B.  D.,  598),  is  the  more 
instructive  because  it  is  a  case  where  the  decision  went  the 
other  way,  and  the  alleged  boycott  was  sustamed  as  lawful ; 
and  moreover,  it  was  a  decision  of  the  court  of  ultimate  ap- 
peal, the  House  of  Lords.  The  defendants  were  firms  of 
shipowners  trading  between  China  and  Europe,  and  with  a 
view  to  obtaining  a  monopoly  of  the  homeward  trade,  and 
thereby  keeping  up  the  rate  of  their  own  freight,  they 
formed  themselves  into  an  association,  and  offered  very 
favorable  terms  to  merchants  in  China  who  would  ship  their 
goods  exclusively  in  their  vessels.  The  plaintiffs,  also 
owners  of  ships  in  the  China  trade,  were  excluded  from  the 
association,  and  their  business  suffered  in  consequence ;  but 
there  was  no  evidence  of  an  obstruction  of  or  interfeience 


OF   THE    UNITED   STATES  245 

which,  although  decided  in  the  year  1221,  slept 
in   the  Latin  manuscripts  of  the  English  Plea 

with  them  or  their  business  directly.  The  court  held  that  the 
association  being  formed  for  the  benefit  of  the  defendants, 
and  not  with  any  desire  to  injure  the  plaintiffs  specifically, 
was  not  an  unlawful  conspiracy.  The  case  is  certainly  very 
close  to  the  line,  and  is  most  interesting  because  it  turned 
solely  on  the  point  for  which  we  have  so  often  contended, 
that  the  legality  of  a  trade  combination  may  become  a  purely 
moral  question,  and  the  same  series  of  acts  will  be  legal  or  il- 
legal according  as  their  direct  intent  is  to  benefit  the  persons 
combining,  or  to  work  injury  to  the  business  of  others,  or 
hamper  them  in  the  exercise  of  their  usual  rights.  The 
court  in  their  opinion  differ  from  the  case  of  Hilton  v.  Eck- 
ersley  (6  Ellis  and  Blackstone,  47) ;  but  it  may  be  questioned 
whether  the  two  cases  are  not  reconcilable.  It  is  interesting 
to  note  that  in  their  decision  they  also  cited  many  American 
cases,  notably  State  v.  Buchanan  (5  Har.  &  J.,  317,  noted 
above),  and  Morris  Coal  Co.  v.  Barclay  Coal  Co.  (68  Penn. 
St.,  173),  which  we  have  elsewhere  discussed. 

Perhaps  the  most  recent  case  in  England  is  that  of  Tem- 
perton  v.  Russell,  occurring  1893  (69  L.  T.  R.,  N.  S.,  78). 
In  this  case  the  defendants  were  members  and  officers  of 
certain  trades-unions  connected  with  the  building  trade, 
which  unions  adopted  certain  rules  in  relation  to  building 
operations.  A  firm  of  builders  having  refused  to  observe 
these  rules,  the  union,  in  order  to  compel  them  to  do  so,  en- 
deavored to  prevent  other  persons  from  supplying  them  with 
materials.  The  plaintiff,  who  supplied  materials  to  that 
firm,  refused  to  comply  with  this  request  of  the  unions, 
whereupon  the  defendants  induced  certain  persons  who  had 
made  contracts  with  him  not  to  carry  them  out,  and  not  to 
deal  in  the  future  with  the  plaintiff,  by  threatening  to  withdraw 
the  union  workmen  who  were  employed  by  them,  whereby 
the  plaintiff  suffered  damage.  The  reader  who  has  gone 
through  our  discussion  of  the  subject  should  have  little  diffi- 


246        HANDBOOK    TO   THE   LABOU   LAW 

Kolls  until  set  forth  in  modern  printed  English 
by  the  zeal  of  the  Seldou  Society  in  1887.  It  is 
as  follows : 

"The  Abbot  of  Lilleshall  complains  that  the 
bailiffs  of  Shrewsbury  do  him  many  injuries 
against  his  liberty,  and  that  they  have  caused 
proclamation  to  be  made  in  the  town  that  none 
be  so  bold  as  to  sell  any  merchandise  to  the 
Abbot  or  his  men  upon  pain  of  forfeiting  ten 
shilHngs,  and  that  Richard  Peche,  the  bedell  of 
the  said  to^Ti,  made  this  proclamation  by  their 
orders.  And  the  bailiffs  defend  all  of  it,  and 
Richard  likewise  defends  all  of  it  and  that  he 
never  heard  any  such  proclamation  made  by 
anyone.  It  is  considered  that  he  do  defend 
himself  twelve-handed  (with  eleven  compurga- 
tors), and  do  come  on  Saturday  with  his  law." 

This  is  a  remarkable  report,  for  in  twelve 
lines  (ten  lines  of  the  law  Latin)  we  have  here 
set  forth  all  the  important  principles  of  the  law 
of  boycott.  The  Abbot  complains  that  the 
Shrewsbury  people  do  him  many  injuries 
"against  his  liberty"  i.e.,  the  Abbot  claims  a 
constitutional  right  to  freely  conduct  his  own 
business ;  then  we  have  the  recognition  of  the 
threat  of  a  boycott  as  a  pai-ticularly  illegal  act : 

culty  in  making  up  his  mind  that  this  -was  a  conspiracy  which 
rendered  the  defendants  liable  to  damages  at  suit  of  the  plain- 
tiff, and  the  court  so  held ;  and  there  is  no  doubt  that  it  was 
a  criminal  conspiracy  also. 


OF   THE   UNITED   STATES  247 

"They  have  caused  proclamation  to  be  made 
that  none  sell  merchandise  to  the  Abbot."  The 
defendants  admit  the  illegality  of  their  conspir- 
acy, because  they  deny  ib  as  a  fact ;  and  the 
bedell  likewise  denies  that  he  ever  made  such 
proclamation  or  threat,  whereupon  (the  plaintiff 
being  a  man  of  the  Church)  they  are  set  to  trial 
by  wager  of  law  instead  of  by  actual  battle,  nei- 
ther party  nor  the  court  making  any  question  of 
the  illegality  both  of  the  conspiracy  and  of  the 
act  complained  of. 

§  58.  The  American  Decisions — The  English 
common  law  of  conspiracy  was  recognized  by 
early  decisions  as  existing  in  this  country  despite 
the  Revolution,  and  despite  the  adoption  of  com- 
plete criminal  codes.  Thus,  in  Massachusetts, 
in  1807,  a  conspiracy  to  manufacture  spurious 
indigo  with  a  fraudulent  intent  to  sell  the  same 
was  held  an  indictable  offence,  although  they 
did  not  in  fact  make  any  such  sale.'  It  would 
be  unnecessary  to  multiply  citations  on  this 
point.  The  principal  actual  cases  of  boycotts 
which  have  been  considered  by  the  courts  and 
held  illegal  are  as  follows  : 

Commonwealth  v.  Hunt  (1842)  ^  was  an  in- 
dictment against  journeymen  boot-makers  for 
entering  into  an  agreement  that  they  would  not 

'  Com.  V.  Judd,  2  Mass.,  329.  '  4  Metcalf,  111. 


248         HANDBOOK    TO    THE    LABOR   LAW 

Wink  for  any  master  who  should  emph)y  any 
workman  not  a  member  of  their  society,  after 
notice  p;iven  him  to  discharge  such  workmen. 
The  indictment  also  alleged  that  by  means  of 
such  conspiracy  they  did  compel  one  Wait  to 
turn  out  of  his  employment  one  Home,  because 
Home  would  not  pay  a  sum  of  money  due  said 
society  for  a  penalty  under  some  one  of  its  by- 
laws. The  third  count  charged  directly  a  con- 
spiracy to  impoverish  Home  and  hinder  him 
from  following  his  trade  as  journeyman  boot- 
maker; and  the  fourth  and  fifth  counts  were 
similar.  The  court  held  that  the  English  com- 
mon law  of  conspiracy  was  in  force  in  Mas- 
sachusetts, but  the  very  elaborate  opinion  of 
Chief  Justice  Shaw  succeeds  in  finding  imper- 
fections in  the  form  of  each  count  of  the  in- 
dictment, the  court  seeming  to  admit  that  the 
confederacy  set  forth  in  the  constitution  of 
the  defendants,  the  Boston  Journeymen  Boot- 
makers, was  an  unlaAvful  conspiracy,  but  failing 
to  find  in  the  indictment  any  allegation  of  a 
conspiracy  for  any  other  purpose  than  to  bene- 
fit the  industrial  condition  of  the  defendants 
themselves.  The  case  is  now  probably  valuable 
as  establishing  clearly  that  persons  have  a  legal 
right  to  "  form  themselves  into  a  society  and 
agree  not  to  work  for  any  person  who  should 
employ  any  journeyman  or  other  person  not  a 
member  of  such  society,  after  notice  given  him  to 


OF   THE    UNITED    STATES  249 

discharge  siich  workmen.''  The  first  part  of  this 
is  law  to-day,  but  the  italicized  portion  might 
well  be  questioned.  Such  a  notice  or  threat 
would  be  very  likely  to  amount  to  intimidation 
or  a  boycott  against  the  obnoxious  workmen. 
However,  the  first  and  second  counts  of  this  in- 
dictment were  undoubtedly  bad.  But  it  is  more 
difficult  to  follow  the  court  in  its  desire  to  de- 
stroy the  third  count  also ;  and  it  may  well  be 
doubted  whether,  if  the  case  had  arisen  in  the 
form  of  a  civil  action  by  Home  against  the  per- 
sons combining  to  prevent  his  getting  employ- 
ment, the  court  would  have  so  decided. 

The  Supreme  Court  of  New  Jersey  in  the  next 
important  case  following,^  which  seems  to  pre- 
sent circumstances  practically  similar,  have  very 
little  doubt  of  the  law,  but  are  at  some  trouble 
not  to  expressly  differ  from  Commonwealth  v. 
Hunt.  The  indictment  in  the  New  Jersey  case 
was  doubtless  much  better  drawn,  as  it  alleged 
that  the  defendants,  being  journeymen  workmen 
employed  by  Ward  and  others,  in  making  patent 
leather,  maliciously  to  control,  injure,  terrify  and 
impoverish  their  employers,  and  force  them  to 
dismiss  from  their  employment  certam  persons, 
to  wit,  Charles  Beggan  and  William  Prendegast, 
and  to  injure  said  Charles  and  William,  unlaw- 
fully did  conspire,  etc.     The  court  held  that  it 


*  State  V.  Donaldson,  32  N.  J.  Law,  151. 


250        HANDBOOK    TO   TIIK   LABOR   LAW 

did  not  come  within  the  express  language  of  the 
New  Jersey  statute  aimed  at  conspiracies  to  the 
injuiy  of  trade,  but  that  the  couspii'acy  was 
criminal  under  the  common  law,  as  an  unwar- 
rantable attempt  to  control  the  plaintiff  in  his 
business,  and  to  the  oppression  of  the  obnoxious 
workmen.  From  this  time  (1867)  there  appears 
no  more  conflict  in  the  American  decisions  than 
there  is  in  the  English. 

In  the  same  year,  the  Supreme  Court  of  Massa- 
chusetts,* following  Com.  v.  Hunt,  refused  to  sus- 
tain an  action  in  tort  for  damages  by  a  shipping 
master  against  a  union  of  sailors'  boarding-house 
keepers,  whose  articles  of  association  provided 
that  "  we  will  use  our  best  endeavors  to  prevent 
our  boarders  shipping  in  any  vessel  where  any 
of  the  crew  shipped  are  from  boarding-houses 
that  are  not  in  good  standing  with  the  associa- 
tion." The  court  held  that  the  gist  of  the 
action  was  not  the  conspiracy,  but  the  damage 
done  the  plaintiff  by  certain  illegal  acts  of  the 
defendants,  and  that  in  order  to  be  good  the  dec- 
laration must  allege  the  commission  of  illegal 
acts,  which  last  proposition  is  certainly  not  the 
law.  It  appeared  that  the  defendants  not  only 
took  their  men  out  of  shops  because  the  plain- 
tiff's men  were  in  the  same,  and  refused  to  fur- 
nish men  to  him,  but  "  did  prevent  men  from 

*  Bowen  v.  Matheson,  14  Allen,  499. 


OF   THE    UNITED    STATES  251 

shipping  with  him,"  for  "  it  did  notify  the  pub- 
lic that  they  had  laid  him  on  the  shelf,"  and 
"  did  publicly  notify  his  customers  and  theirs 
that  he  could  not  ship  seamen  for  them."  So 
far  as  the  case  can  be  sustained,  it  is  in  line 
with  McGregor  v.  Mogul  S.  S.  Co.,  but  the  deci- 
sion cites  no  case  except  Com.  v.  Hunt,  and  con- 
siders each  act  of  the  combination  solely  as  to 
the  question  whether  it  is  illegal  as  a  single  act, 
tortious,  or  slanderous.  Except  in  Massachu- 
setts, the  case  must  be  considered  of  no  au- 
thority. 

Indeed,  the  next  Massachusetts  case  is  really 
inconsistent  with  it.'  This  case  held  that  "  A 
conspiracy  to  obtain  from  a  master  mechanic, 
whose  business  requires  the  employment  of 
workmen,  money  which  he  is  under  no  legal 
liability  to  pay,  by  inducing  or  threatening 
workmen  to  leave  his  employment,  and  deter- 
ring or  threatening  to  deter  others  from  entering 
it,  so  as  to  rendering  him  reasonably  apprehen- 
sive that  he  cannot  carry  on  business  without 
making  the  payment,  is  illegal ;  and  in  an  ac- 
tion of  tort  he  may  recover  the  sum  so  paid,  and 
damages  for  the  injury  of  his  business  by  the  acts 
of  the  conspirators."  In  this  case  the  articles 
of  association  were  far  less  objectionable  than 
in   the    two    preceding    Massachusetts    cases; 

*  Carew  v.  Rutherford,  106  Mass.,  1. 


2^)2         HANDBOOK   TO    THE    LABOR    LAW 

perhaps  the  most  questionable  one  being  that 
"Any  emplojer  Avho  shall  be  known  to  depre- 
ciate our  trade  shall  be  firndy  discountenanced 
by  this  association,  and  such  measures  shall  be 
adopted  toward  him  as  are  not  inimical  to  the 
laws  of  this  republic,  nor  to  the  rights  of  said 
eraploj^er  as  a  citizen  of  this  republic."  The 
facts  were  that  the  defendants  extorted  from  the 
plaintiff  a  fine  of  five  hundred  dollars  for  em- 
ploying workmen  in  New  York,  although  he  w^as 
imable  to  procure  workmen  to  do  that  particular 
work  in  Boston ;  and  he  was  compelled  to  pay 
the  fine  because,  after  the  withdrawal  of  the  de- 
fendants, he  could  not  procure  other  stone-cut- 
ters not  members  of  their  association  who  had 
sufficient  skill  to  caiTy  out  the  contract  in  hand. 
The  case  was  decided  by  Judge  Chapman,  who 
also  wrote  the  opinion  in  Bowen  v.  Matheson, 
and  it  would  seem  as  if  the  peculiar  hardship  of 
this  case  had  enlightened  the  learned  justice  on 
the  law. 

This  case  was  soon  followed  (in  1871)  by 
Walker  v.  Cronin,*  where  an  action  of  tort  for 
dapiages  was  sustained  for  a  conspiracy  of  the 
defendants  to  induce  the  plaintiff's  emi3loyees, 
shoe-makers,  to  leave  his  employment,  some  of 
them  being  under  contract,  and  to  prevent  others 
from  entering  it.     This  case  goes  rather  far  in 

*  107  Mass.,  555. 


OF   THE    UNITED    STATES  253 

the  other  direction,  as  the  action  was  sustained 
on  all  counts,  including  the  one  which  did  not 
set  forth  that  the  workmen  persuaded  to  leave 
were  under  any  contract  to  stay.  It  would  ap- 
pear, however,  that  the  defendants  were  not 
themselves  in  the  employ  of  the  plaintiff — a 
fact  of  which  the  court  took  no  special  notice, 
but  which,  as  we  have  shown  above,  is  very  ma- 
terial ;  and  indeed  it  is  probably  only  for  this 
reason  that  the  case  would  now  be  followed.  As 
showing  how  little  the  law  of  boycotting  had 
been  developed  only  twenty-five  years  ago,  it  is 
interesting  to  note  that  the  court  have  more 
doubt  about  the  count  which  alleges  the  per- 
suading of  employees  not  under  contract  to  leave 
than  they  have  about  the  others. 

The  case  of  State  v.  Glidden,"  decided  in  1886, 
is  the  first  reported  American  case  in  which  the 
word  "boycott"  is  used.  Here  the  indictment 
set  forth  that  the  defendants,  who  were  printers 
belonging  to  a  union,  conspired  to  compel  a 
newspaper  publishing  company  to  discharge  cer- 
tain workmen,  who  were,  of  course,  non-union 
men,  and  to  employ  the  defendants,  with  the 
usual  counts  alleging  an  intent  to  injure  the 
complaining  company  and  the  boycotting  em- 
ployees. The  Connecticut  statute  of  1878, 
providing  that  every  person  who  should  intirai- 

■"SSCt.,  4G. 


254        HANDBOOK   TO   THE   LABOll    LAW 

date  another,  or  compel  suph  other  to  do  or  ab- 
stain from  doing  any  act  which  he  has  a  legal 
right  to  do,  or  persistently  follow  such  person, 
etc.,  was  clearly  in  point,  aud  made  the  combi- 
nation unlawful,  both  iu  its  purpose  and  in  its 
means ;  but  the  court  went  on  to  say,  with  the 
greatest  particularity,  that  the  conspiracy  was 
criminal  upon  authority  ;  that  is,  upon  common 
law  gi'ounds  ;  saying  : 

"  If  Ave  were  to  attempt  to  give  a  mle  appli- 
cable to  this  branch  of  the  subject,  we  should 
say  that  it  is  a  criminal  offence  for  two  or  more 
persons  corruptly  or  maliciously  to  confederate 
and  agree  together  to  deprive  another  of  his 
liberty  or  property.  Such  a  rule  is  proxi- 
mately correct  and  practically  just." 

This  boycott  was  attended  with  the  ordinary 
incidents  of  endeavoring  to  injure  the  complain- 
ant's trade  ;  a  circular  was  dropped  about  the 
streets  containing  the  words,  "  A  word  to  the 
wise  is  sufficient.  Boycott  the  Journal  and 
Courier"  and  was  admitted  in  evidence,  as  was 
also  the  testimony  of  one  Bertha  Palm,  to  the 
effect  that  she  overheard  five  or  six  union  prin- 
ters, among  whom  was  one  of  the  defendants, 
say  that  they  were  pacing  fifty  cents  a  week 
apiece  for  the  expenses  of  the  Courier  boycott, 
and  that  "  it  would  be  paid  for  by  the  Courier^ 
In  the  same  year  an  indictment  was  sustained 
where  the  defendants,  members  of  trades  unions 


OF   THE   UNITED   STATES  255 

in  the  city  of  Eichmond,  combined  to  make 
threats  to  certain  customers  of  Baughmann 
Brothers,  printers,  among  them  H.  J.  Meyers, 
that  if  they  thereafter  bought  anything  from 
Baughmann  Brothers,  or  employed  them  in 
their  business,  they — the  defendants — would  do 
all  in  their  power  to  break  up  the  business  of 
said  H.  J.  Meyers,  or  other  customers  of  Baugh- 
mann Brotliers.  The  court  held  that  it  amounted 
to  a  conspiracy  at  common  law  in  Virginia  ;  that 
the  English  law  of  conspiracy  was  in  force  there, 
and  that  "  any  conspiracy  formed  and  intended 
directly  or  indirectly  to  prevent  the  carrying  on 
of  any  lawful  business,  or  to  injure  the  business 
of  anyone,  by  wrongfully  preventing  those  who 
would  be  customers  from  buying  anything  from, 
or  employing  the  representatives  of,  said  busi- 
ness, by  threats,  intimidation,  or  other  forcible 
means,  is  unlawful,"  and  said,  "  An  act  may  be 
immoral,  for  instance,  without  being  indictable, 
but  when  immoral  acts  are  committed  by  num- 
bers in  furtherance  of  a  common  object,  and 
with  the  advantages  and  strength  which  deter- 
mination and  union  impart  to  them,  they  assume 
the  grave  importance  of  a  conspiracy.  .  .  ." 
"  By  '  unlawful '  it  is  not  intended  to  mean 
that  the  acts  agi'eed  to  be  done  must  be  crimi- 
nal ;  it  is  enough  if  they  are  wrongful  and  with 
an  improper  or  evil  intent ;  thus  it  has  been 
held  that  threats,  intimidation,  or  any  forcible 


25G         HANDBOOK    TO   THE   LABOR   LAW 

means,  other  tliau  lawful  competition,  are  un- 
lawful. 

"  The  intent  with  Aviiich  au  act  is  done  must 
always  be  taken  into  consideration  in  arriving 
at  the  legality  of  a  transaction.  And  in  this 
connection  I  call  attention  to  the  fact  that  the 
law  looks  at  the  intent  rather  than  the  motive. 
The  intent  is  the  immediate  purpose  w  ith  which 
the  act  is  done,  w^hile  the  motive  is  the  desire 
in  the  mind  to  attain  some  ultimate  object. 
Thus  the  man  who  sets  fire  to  his  neighbor's 
grain  to  prevent  it  being  manufactured  into 
liquor,  might  be  said,  possibly,  to  be  actuated 
by  a  good  motive  ;  but  the  specific  intent  of  that 
act  w^ould  be  to  destroy  his  neighbor's  property, 
and  that  intent  the  law  brands  as  evil,  and  it 
refuses  to  inquire  further  into  the  motive  (May's 
Crim.  L.,  §  6).  When  a  man  does  the  thing  for- 
bidden by.  law%  moved  by  the  intent  prohibited, 
it  is  of  no  avail  for  him  that  he  also  intends  an 
ultimate  good."^ 

In  Old  Dominion  S.  S.  Co.  v.  McKenna  (1887),9 
the  principle  is  at  last  clearly  announced  that 
the  procurement  of  workmen  to  quit  in  a  body 
for  the  purpose  of  inflicting  damage  upon  the 
employer,  by  persons  who  are  not  in  his  employ, 
and  until  he  should  accede  to  demands  of  such 


« 11  Va.  L.  J.,  324,  Com.  t:  Shelton  (1887). 
»30F.  R..  48. 


OF   THE   UNITED   STATES  257 

outside  persons,  which  he  is  under  no  obligation 
to  grant,  constitutes  an  unlawful  conspirac)'. 
The  case  was  an  ordinary  boycott  of  the  steam- 
ship company  for  not  paying  southern  negroes 
the  same  wages  as  New  York  longshoremen. 
The  defendants,  who  called  themselves  "  The 
Executive  Board  of  the  Ocean  Association  of 
Longshoremen's  Union,"  were  not  in  the  plain- 
tiff's employ  ;  and  after  persuading  his  workmen 
to  quit,  declared  a  boycott  against  him  in  the 
ordinary  way,  by  sending  notices  and  messen- 
gers to  steamship  agents,  wharfingers,  and  ware- 
housemen. The  word  "  boj'cott  "  is  used  in  the 
opinion. 

In  the  year  preceding,  the  leading  case  of 
People  V.  Wilzig  '°  was  decided  in  New  York. 
This  was  the  well-known  boycott  of  Theiss's 
saloon  on  East  Fourteenth  Street,  New  York, 
and  was  based  on  a  demand  that  he  should  dis- 
charge his  orchestra  and  employ  only  members 
of  a  certain  musical  union  at  their  union  prices ; 
and  also  discharge  his  waiters  and  employ  only 
union  waiters ;  that  he  should  abolish  the  per- 
centage system,  and  not  exact  deposits  for  their 
badges  or  utensils.  Two  other  defendants  de- 
manded that  he  should  discharge  all  his  bar- 
tenders and  employ  only  members  of  that  imion 
at   their   price.      Mr.    Theiss   replied   that   his 

'«  4  N.  Y.  Crim.  Rep.,  403. 
17 


"2^8         HANDBOOK    TO   THE   LABOR   LAW 

brother-in-law  was  liis  head  bartender,  his  son 
was  his  head  waiter,  his  wife  was  cashier,  and 
the  leader  of  his  orchestra — Mr.  Eschert — a  man 
whom  he  had  known  for  ten  years,  and  who  had 
been  associated  with  him  in  business,  and  that 
all  his  fortune  was  invested  in  the  business. 
The  defendants,  representing  the  Knights  of 
Labor  and  the  Central  Labor  Union,  replied 
that  they  had  merely  come  there  to  make  their 
demands,  and  unless  they  were  complied  with 
in  less  than  twenty-four  hours  a  boycott  would 
be  placed  upon  his  business,  which  was  duly  or- 
dered. The  boycott  consisted  in  a  body  of  men 
walking  up  and  down  in  front  of  his  saloon, 
wearing  old  and  dilapidated  pants  pasted  over 
■«dth  circulars  headed  "  Boycott,"  libellous  in 
their  character,  announcing  that  Theiss  was  a 
foe  of  organized  labor,  and  calling  upon  all 
people  to  abstain  from  visiting  his  place.  This 
circular  was  signed  by  the  Boycott  Committee 
of  the  Central  Labor  Union.  A  crowd  of  five 
hundred  people  collected  and  obstructed  Mr, 
Theiss's  business  for  fifteen  days.  They  went 
also  to  the  man  who  sold  Mr.  Theiss  mineral 
water,  and  the  brewer  who  supplied  him  with 
beer  and  held  a  mortgage  on  his  property,  and 
asked  the  one  to  cease  selling  him  mineral  water, 
and  the  other  to  foreclose  his  mortgage.  The 
efforts  of  the  boycotters  prevailed,  and  Mr. 
Theiss  finally  acceded  to  their  demands,  and, 


OF  THE   UNITED    STATES  259 

moreover,  gave  them  a  check  of  one  thousand 
dollars  for  their  expenses  in  carrying  on  the  boy- 
cott. The  defendants  were  indicted  for  criminal 
conspiracy  and  extortion  under  the  New  York 
code,  and  it  is  needless  to  say  the  indictment 
was  sustained ;  the  defendants  were  all  convicted 
by  a  jury  and  sentenced  for  terms  varying  from 
three  years  and  eight  months  to  one  year  and 
six  months. 

In  the  same  year,  and  by  the  same  judge, 
there  was  a  case  of  a  boycott  against  Mrs.  Land- 
graff,  proprietress  of  a  small  bakery,  where  the 
facts  showed  intimidation,  the  distribution  of 
circulars,  etc.  Many  of  the  "  requests  to  charge," 
prof  erred  by  Mr.  Goff,  now  recorder  in  New 
York  City,  and  their  rejection  by  the  court,  in 
this  case  are  very  instructive.  The  defendants 
were  sentenced  for  terms  ranging  from  ten  to 
thirty  days." 

Both  these  cases  arose  under  the  New  York 
Penal  Code,  the  former  under  §§  552  and  553 
for  extortion,  the  latter  under  168,  Subdivision 
5,  and  653,  Subdivision  3,  for  conspiracy.  But 
in  both  cases  the  court  substantially  consider 
and  state  the  common  law. 

Then  arose  the  case  of  the  People  exrel.  Gill  v. 
Smith,  very  interesting  in  its  facts,  but  singularly 
unsatisfactory  in  the  opinion.     The  facts  in  this 

1'  People  r.  Kostka,  4  N.  Y.  Crim.  Rep.,  429. 


200         HANDBOOK    TO   THE   LABOR   LAW 

case,  and  iu  People  ex  rel.  Gill  v.  Walsh,  under 
which  name  the  case  was  appealed,'^  were  that 
Gardner  &  Estes  were  owners  of  a  shoe  factory, 
of  which  Hartt,  the  complainant,  was  foreman ; 
that  said  Hartt  caused  the  discharge  of  one  Pot- 
ter, an  employee,  on  suspicion  of  swindling  the 
firm  by  altering  checks  and  coupons,  and  there- 
by securing  payment  for  labor  not  performed. 
The  shop  was  what  was  known  as  a  "  union  " 
shop  ;  and  when  Hartt  was  first  employed  as  fore- 
man, the  defendant  Gill,  Avho  was  an  officer  of  a 
shoemakers'  trades  union  known  as  "  District 
Assembly  No.  91  of  the  Knights  of  Labor,"  and 
was  also  employed  in  the  manufactory  of  Gard- 
ner &  Estes,  went,  with  others  of  the  employees, 
to  the  firm  and  objected  to  working  under  Hartt 
for  the  reason  that  he  was  an  "  old-time  scab," 
who  would  try  to  reduce  wages.  At  the  request 
of  the  firm,  the  employees  agreed  to  lay  the  mat- 
ter over  for  a  month  "  to  see  whether  Hartt 
w^ould  attempt  to  undermine  the  organization." 
At  the  end  of  the  month,  nothing  having  occuiTed 
to  excite  their  suspicion,  they  postponed  con- 
sideration of  the  subject  for  two  months  longer, 
and  before  the  expiration  of  that  period  Hartt  had 
discharged  the  foreman  Potter  for  swindling.  The 
crew,  that  is  the  employees  of  the  shop,  demanded 
Potter's  reinstatement,  and  upon  their  demands 


'5  1  N.  Y.  Crim.,  292  ;    5  N.  Y.  Crim.,  509. 


OF   THE    UNITED    STATES  261 

Potter  was  reinstated  peudiug  tbe  return  of  Mr. 
Gardner  from  the  South.  But  when  Mr.  Gard- 
ner returned,  having  investigated  the  circum- 
stances, he  directed  Potter  to  be  discharged 
by  Hartt,  whereupon  a  lockout  or  strike — it 
does  not  clearly  appear  which — occurred,  and 
the  firm's  business  was  stopped.  The  relator 
Gill  and  his  co-defendant,  constituted  an  execu- 
tive committee  in  District  Assembly  91  K.  of  L., 
then  called  upon  the  firm  and  demanded  the 
discharge,  not  only  of  Hartt,  but  of  two  other 
foremen,  and  also  that  Potter  should  be  rein- 
stated. The  firm  refused  to  comply,  and  several 
conversations  took  place,  at  which  the  union 
committee  refused  to  listen  to  any  proposition 
except  on  condition  that  Hartt  should  be  finally 
discharged.  They  were  asked  whether  in  that 
case  they  would  in  any  way  endeavor  to  prevent 
Hartt  obtaining  employment  elsewhere,  and  in 
answer  they  declared  that  Hartt  should  not  there- 
after obtain  any  employment  within  the  jurisdic- 
tion of  District  Assembly  No.  91,  which  includes 
the  city  of  New  York  and  the  surrounding 
country  for  fifty  miles.  Gardner  &  Estes  were 
at  last  compelled  to  yield  to  the  demands  of  the 
strikers,  and  cease  their  efforts  to  protect  Hartt. 
They  informed  him  that  he  must  resign  or  be 
discharged,  whereupon  Hartt  ceased  work  under 
protest.  The  Court  held  that  Avhile  a  peaceable 
strike  for  the  purpose  of  obtaining  an  advance 


2G2        HANDBOOK   TO   THE   LABOR   LAW 

iu  the  rate  of  wages,  or  maiiitaiuing  siicli  rate, 
was  not  an  offence  against  the  provisions  of  the 
New  York  Penal  Code  (§  170),  yet  a  combination 
to  strike,  or  a  strike  for  uuhiwful  purposes,  there 
being  no  relation  between  the  strike  and  the 
wages  of  the  striking  employees,  was  a  criminal 
conspiracy,  and  that  the  effort  to  prevent  Hartt 
from  obtaining  employment  or  keeping  his  pres- 
ent position  was  such  an  unlawful  purpose.  It 
appears  from  the  second  case  that  both  cases 
proceeded  under  the  common  law  as  well  as 
under  §§  169,  170  of  the  New  York  Penal  Code, 
though  neither  counsel  seem  to  have  had  any 
particular  sense  of  the  legal  doctrines  they 
were  invoking,  or  the  chain  of  decisions  by  which 
their  case  was  really  governed.  But  the  facts 
of  this  case  are  most  interesting  as  clearly  show- 
ing the  precise  definition  that,  while  a  strike  to 
raise  wages  is  law^ful  enough,  a  strike,  or  threat 
to  strike,  for  the  purpose  of  boycotting  another 
person  is  a  criminal  conspiracy. 

About  the  same  time  (1888)  we  find  a  decision 
of  the  United  States  Supreme  Court  '^  which 
fully  recognizes  the  English  law  of  conspiracy 
and  boycotting,  and  the  principle  that  it  is  in- 
dictable for  two  or  more  to  confederate  and  com- 
bine together  even  against  the  liberty  of  an  indi- 
vidual ;    and   a   conviction    of    the   District   of 

'3  Callan  v.  Wilson,  127  U.  S.,  540. 


OF   THE   UNITED   STATES  263 

Columbia  court  of  certain  musicians,  members 
of  the  Knights  of  Labor,  for  boycotting  members 
of  the  local  association  for  refusing  to  pay  a  fine, 
was  sustained. 

And  in  the  same  year  occurred  the  leading 
American  case  on  picketing,  the  Massachusetts 
case  of  Sherry  v.  Perkins,'^  where  an  injunction 
was  granted  to  prevent  a  lasters'  union  from 
parading  in  front  of  the  plaintiffs  works  with 
banners  and  inscriptions,  to  the  effect  that 
"  Lasters  are  requested  to  keep  away  from  P.  P. 
Sherry's.  Per  order  L.  P.  U."  It  will  be  noted 
that  it  does  not  appear  in  the  case  that  the  de- 
fendants were  employees  of  the  plaintiff,  which 
is  a  material  point,  and  that  the  carrying  of 
banners  was  held  to  overstep  the  limit  of  reason- 
able persuasion  ;  but  the  bill  also  alleged  intim- 
idation, and  the  case,  as  reported,  so  found. 
Moreover,  there  was  a  Massachusetts  statute  to 
the  effect  that  "  whoever  by  intimidation  or 
force  prevents  or  seeks  to  prevent  a  person  from 
entering  into  or  continuing  in  the  employment 
of  another  shall  be  punished  by  fine,  etc."  The 
court  well  finished  what  remained  of  Bowen  v. 
Matheson  when  they  say  that  the  wrong  did  not 
consist  in  a  libel  on  the  plaintiffs'  business,  but 
in  the  combination ;  and  the  injunction  was 
granted  on  the  ground  that  the  injury  was  con- 

'*147  Mass.,  212. 


264         HANDBOOK    TO   THE   LABOU    LAW 

tiiiuous,  and  an  adequate  remedy  could  not  be 
given  by  damages  in  a  suit  at  law.  But  we  must 
admit  that  if  there  was  no  other  intimidation 
than  the  carrying  of  banners  asking  employees 
not  to  work,  the  case  is  ver}'  near  the  line. 

In  the  same  year  Baughmaun's  case,  cited 
above,  from  the  original  judgment  of  the  hustings 
court  of  Richmond  came  up  on  appeal  in  the  Su- 
preme Com-t  of  Virginia,  and  the  court  affirmed 
the  principle  that  a  conspiracy  to  injure  the  busi- 
ness of  an  individual  is  unlawful ;  and  that  in  such 
case  it  is  not  necessary  to  show  that  the  means 
used  were  unlawful,  although  such  charges  were 
in  fact  made  ;  and  boycotting  was  expressly  de- 
clared contrary  to  the  common  law  of  Vii'ginia.^^ 

And  in  the  same  month  arose  the  Pennsylva- 
nia leading  case  of  Brace  v.  Evans. ^^  The  plain- 
tiffs were  operating  a  steam  laundry,  employing 
one  hundred  and  thirty-nine  persons,  about 
ninety  of  whom  were  girls.  Having  discharged 
eleven  of  the  latter,  who  afterward  jDersuaded 
some  others  also  to  leave  their  employment,  they 
were  waited  upon  by  representatives  of  the 
Knights  of  Labor  and  Trades  Assembly,  demand- 
ing their  reinstatement.  Afterward  circulars 
were  issued  alleging  abusive  treatment,  and  pla- 
cards with  the  words  "Boycott  Brace  Brothers," 


'«  Cramp  V.  Com.,  84  Va.,  927. 
'«3R.  feCorp'.  L.  J.,  561. 


OF  THE   UNITED   STATES  265 

carried  by  men  who  followed  the  plaintiflfs' 
wagons,  took  down  the  names  of  their  customers, 
and  afterward  visited  them,  endeavoring  to  per- 
suade them  from  further  patronizing  the  plain- 
tiffs. A  civil  action  was  first  brought,  but  these 
acts  continuing,  the  prayer  for  the  injunction 
was  made;  and  it  is,  perhaps,  needless  to  say 
that  the  court  granted  it,  noting  particularly  that 
the  defendants  were  not  employees  of  the  plain- 
tiffs ;  the  court  saying  that  whether  the  plain- 
tiffs compelled  their  employees  to  work  too  long 
hours  or  not,  the  defendants  had  no  right  to 
pass  judgment  upon  them  and  organize  for  the 
punishment  of  their  supposed  offence.  If  this 
were  so,  the  plaintiffs  might  resolve  that  the 
conduct  of  the  girls  who  were  discharged  justi- 
fied them  in  preventing  their  employment  else- 
where. It  is  in  this  case  that  the  celebrated 
catch-phrase  seems  to  have  originated,  "  the  use 
of  the  word  boycott  is  in  itself  a  threat." 

We  then  find  a  series  of  decisions  in  the  Fed- 
eral Circuit  courts ;  the  leading  one  is  Casey  v. 
Cincinnati  Typogi-aphical  Union."  This  was  a 
combination  of  members  of  a  trades  union,  a 
duly  organized  corporation,  but  not  employees  of 
the  plaintiff  newspaper,  to  boycott  it  for  refusing 
to  employ  only  union  labor  in  its  office.  The 
methods  adopted  were  the  circulation  of  hand- 

"  45  F.  R.,  135. 


266         HANDBOOK    TO   THE   LABOK   LAW 

bills  to  working  men,  asking  them  to  withdraw 
their  patronage,  a  demand  upon  news  agents  to 
give  up  the  agency  of  the  plaintiff's  newspaper, 
saying  "  if  you  do  not  do  so,  we  will  have  to 
consider  you  an  enemy  to  organized  labor ; " 
and  circulars  asking  working  men  not  to  patron- 
ize merchants  who  advertised  in  his  newspaper, 
and  circulars  requesting  merchants  not  to  adver- 
tise in  it.  The  combination  was  declared  a  boy- 
cott, and  a  preliminary  iujunction  granted. 

In  1893  arose  the  first  important  case  of  a  boy- 
cott, not  of  an  employer  by  his  employees  or 
their  sympathizers,  but  of  one  merchant  by  an- 
other. The  Dueber  Watchcase  Manufacturing 
Company  brought  suit  against  the  Howard 
Company  '^  for  damages  resulting  from  an  illegal 
conspiracy  to  destroy  the  plaintiff's  trade,  alleg- 
ing that  the  defendants  mutually  agreed  and 
notified  all  watch  dealers  throughout  the  United 
States  that  they  would  not  thereafter  sell  any 
cases  manufactured  by  them  to  any  person  who 
should  buy  or  sell  any  goods  manufactured  by 
the  Dueber  Company  ;  whereupon  a  large  num- 
ber of  dealers  withdrew  their  patronage  from  the 
latter  company,  and  ceased  to  deal  in  these 
goods  ;  that  prior  to  November  16,  1887,  the  de- 
fendants had  agreed  that  they  would  maintain 
an  arbitrary  fixed  price   for  their  goods ;  and 

'•  55  F.  R.,  851. 


OF  THE  UNITED  STATES       267 

the  agreement  complained  of  was  for  the  sole 
purpose  of  compelling  plaintiff  to  join  with  the 
defendants  in  maintaining  such  arbitrary  price 
— the  purpose  being  to  establish  a  monopoly  in 
watchcases,  crush  competition,  and  drive  the 
plaintiff  from  business  unless  he  joined  them. 
The  bill  also  charged  that  after  the  passage  of 
the  Anti-Trust  Act  of  1890  the  defendants  rati- 
fied and  continued  such  agreement  in  violation 
thereof,  and  treble  damages  were  demanded 
under  §  7  of  the  Act.  This  action,  however, 
failed  because  it  was  not  alleged  that  defendants 
were  engaged  in  interstate  commerce,  and  the 
contract  was  held  not  to  be  one  in  restraint  of 
trade  under  the  common  law.  But  the  court 
(Judge  Coxe)  do  not  seem  to  have  had  the  law 
of  boycott  much  in  mind,  as  none  of  the  author- 
ities on  this  point  are  cited,  and  when  the  case 
came  up  on  appeal  the  decision  was  affirmed. 
The  complaint  was  amended,  but  still  appeared 
to  be  brought  under  the  Interstate  Commerce 
Act ;  but  this  was  probably  done  for  the  pur- 
pose of  giving  the  federal  courts  jurisdiction, 
and  the  decision  of  the  majority  went  on  the 
ground  that  it  was  not  shown  to  be  a  monopoly 
of  interstate  trade.  The  case,  therefore,  while 
piesenting  an  interesting  case  of  the  ordinary 
boycott,  went  off  on  the  sole  question  whether 
it  came  under  the  Interstate  Commerce  Act,  and 
is  of  no  value  as  an  authority. 


268        HANDBOOK   TO   THE   LABOR   LAW 

But  the  same  case  arose  in  the  courts  of  New 
York  state,  in  the  form  of  an  action  for  con- 
spiracy, in  which  the  Dueber  Compan}^  claimed 
that  the  Howard  Company,  engaged  in  a  busi- 
ness similar  to  the  plaintiffs,  agreed,  in  further- 
ance of  a  conspiracy  to  iiiin  the  plaintiff,  not  to 
sell  any  of  their  goods  to  any  person  who  should 
deal  in  the  plaintiff"s  goods  ;  and  it  was  held  by 
Judge  Paterson  that  this  declaration  was  good 
on  demurrer,  and  even  that  no  specific  damage 
resulting  from  defendant's  conspiracy  need  be 
alleged,  but  that  the  general  charge  that  the  de- 
fendants intended  to  ruin  the  plaintiff's  business 
was  sufficient.'^ 

And  the  next  year,  the  decision  of  the  Circuit 
Court  in  Hagan  v.  Blindell  ^  w^as  sustained  at 
common  law,  though  denied  under  the  Interstate 
Commerce  Act,  under  which  a  suit  for  an  in- 
junction could  only  be  brought  by  the  govern- 
ment. The  facts  were  that  the  plaintiffs,  owners 
of  a  steamship,  were  prevented  by  the  com- 
bination of  the  defendants  from  shipping  a 
crew.  It  does  not  appear,  in  the  very  imperfect 
report,  who  the  defendants  were,  but  it  is  prob- 
able that  they  were  not  themselves  members  of 
the  crew,  but  were  some  sailors'  union  or  combi- 
nation of  sailors'  agencies. 


'»  24  N.  Y.  Sup.,  647. 

'"54  F.  R.,  40;  56  F.  R..  696. 


OF   THE   UNITED   STATES  269 

In  1893  the  case  of  Van  Horn  v.  Van  Horn  was 
decided  in  New  Jersey/'  which  was  a  case  w^here 
Emma  Van  Horn  and  her  husband  brought  suit 
against  Araos  Van  Horn  and  another  for  con- 
spiring to  injure  Emma  in  her  business  of  selling 
fancy  goods,  both  parties  being  engaged  in  the 
furniture  business  in  neighboring  streets.  The 
point  of  the  decision  Avas  that  the  plaintiffs,  hav- 
ing failed  to  prove  the  conspiracy,  might  never- 
theless recover  against  one  defendant  for  false 
representations  by  which  they  were  injured,  and 
the  case  is  principally  noteworthy  for  the  follow- 
ing passage  in  the  opinion  : 

"  While  a  trader  may  lawfully  engage  in  the 
sharpest  competition  with  those  in  a  like  busi- 
ness, by  holding  out  extraordinary  inducements, 
by  representing  his  own  wares  to  be  better  and 
cheaper  than  those  of  others,  yet  when  he  over- 
steps that  line  and  commits  an  act  with  the 
malicious  intent  of  inflicting  injury  upon  his 
rival's  business,  his  conduct  is  illegal,  and  if 
damage  results  from  it  the  injured  party  is  en- 
titled to  redress.  Nor  does  it  matter  whether 
the  wrongdoer  effects  his  object  by  persuasion 
or  by  false  representation." 

Pettibone  v.  United  States  "  is  a  very  inter- 
esting case,  and  is  so  near  the  line  of  criminal 
conspiracy  that  the  decision  must  be  considered 

«'  56  N.  J.  Law,  318.  "  148  U.  S.,  197. 


270         HANDBOOK    TO    TUK    LABOK    LAW 

of  tloiibtful  authority,  i>avticulai'ly  as  Justices 
Brewer  and  Brown  dissented.  There  was  a 
strike  in  the  mine  of  Northern  Idaho,  .and  Petti- 
boue,  with  others,  was  indicted  under  U.  S.  R.  S. 
5399,  5440  for  inijieding  by  tlireats  the  adminis- 
tration of  justice  in  the  United  States  com'ts, 
and  for  conspiring  to  do  so.  A  writ  of  injunc- 
tion had  been  issued  by  the  Circuit  Court,  on  a 
bill  brought  by  the  Bunker  Hill  Mining  Com- 
pany against  the  Miners'  Union,  against  the 
plaintiffs  in  error,  and  many  others,  from  inter- 
fering with  the  mining  company',  or  by  force,  or 
threats,  or  otherwise,  making  any  attempts  to 
intimidate  an  employee,  or  any  other  person 
from  taking  service  with  the  plaintiff  company, 
etc.  The  indictment  averred  that  the  defend- 
ants conspired  to  intimidate  the  employees  and 
others  from  so  working ;  but  was  clearly  de- 
fective in  not  averring  that  the  defendants  had 
conspired  to  cause  the  parties  served  to  disobey 
the  injunction,  although  it  did  set  forth  in  gen- 
eral terms  that  they  conspired  to  impede  the 
administration  of  justice  in  the  United  States 
Circuit  Court.  The  court  affirmed  the  old  rule 
of  pleading  set  forth  in  Commonwealth  v.  Huut,^ 
that  an  indictment  for  criminal  conspiracy  must 
set  forth  the  purpose,  if  the  purpose  be  criminal  or 
illegal,  and  the  means,  if  the  means  be  so,  when 

"4  Met.,  111.     See  above. 


OF   THE    UNITED    .sTATES  271 

the  purpose  is  not  in  itself  unlawful,  and  quashed 
the  indictment  for  the  defect  we  have  noted. 
But  the  case  seems  to  us  not  in  consonance  with 
the  best  authorities  on  another  jjoint :  It  was  a 
criminal  offence,  under  the  statutes  of  Idaho,  to 
conspire  by  intimidation  to  compel  employees 
to  leave  work,  and,  although  the  defendants 
could  not  have  been  tried  in  the  United  States 
Court  directl}'  for  violation  of  this  Idaho  statute, 
it  seems  that  its  existence  would  be  sufficient  to 
make  the  purpose  of  the  combination  illegal 
within  the  accepted  definition  of  the  word  in 
the  law  of  conspiracy.  Of  course,  if  the  intimi- 
dation could  be  considered  to  be  merely  malum 
prohibitum  and  not  malum  in  se,  the  pi*ohibition 
of  the  Idaho  statute  would  not  have  the  effect 
of  making  a  combination  to  break  it  criminal  in 
the  federal  court ;  but  one  can  hardly  take  this 
view  of  the  facts.  And  in  1893  it  was  held  by 
the  Supreme  Court  of  Pennsylvania,'^^  that  "  a 
court  of  equity  will  enjoin  discharged  employees 
or  members  of  a  union  "  (or,  it  would  seem, 
other  persons)  "  fi*om  gathering  about  the  plain- 
tiff's place  of  business,  and  from  following  his 
employees  to  and  from  work,  and  gathering 
about  their  boarding-places,  and  from  any  and 
all  manner  of  threats,  intimidation,  ridicule,  and 
nuisance." 

'^Murdock  v.  Walker,  152  Pa.,  595. 


272         HANDBOOK    TO   THE    LABOi:    LAW 

Wo  have  now  come  down  to  the  boycott  cases 
occurring  in  consequence  of  the  Pullman  strike 
in  189-4.  Most  of  these  will  better  be  considered 
under  ^^5$  05  and  66,  as  the  decision  commonly 
turned  either  upon  the  Anti-Trust  or  Inter-state 
Commerce  Law,  or  upon  the  fact  that  the  acts 
were  committed  against  railroads  in  the  hands  of 
receivers ;  but  it  was  repeatedly  held  that  a 
combination  to  injure  the  owner  of  cars  (the 
Pullman  Co.)  operated  by  railroad  companies 
under  contracts  with  it,  by  compelling  them 
to  give  up  using  its  cars  in  violation  of  their 
contracts  or  otherwise,  and  on  their  refusal  to 
incite  railroad  employees  to  quit  work,  was  a 
boycott  and  unlawful  conspiracy.  A  good  ex- 
ample of  a  case  so  holding  is  Thomas  v.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.,^'  in  which  decision 
Judge  Taft  also  notes  as  an  important  point, 
that  the  conspiracy  had  no  effect,  and  was  meant 
to  have  no  effect,  on  the  character  or  reward  of 
services  of  the  employees  actually  combining ; 
and  also  that  a  conspiracy  to  compel  an  employer 
(the  Pullman  Co.)  to  pay  its  employees  more 
wages,  by  inciting  the  employees  of  all  the  rail- 
roads of  the  country  to  strike,  was  an  unlawful 
conspiracy  by  reason  of  its  purpose,  even  when 
the  means  were  such  as  would  usually  be  lawful. 
This  case  arose  on  the  petition  of  the  receiver  of 

"26  F.  R..  803. 


OF   THE    UNITED    STATES  273 

the  railroad  for  the  commitment  of  one  Phelan 
for  contempt,  lie,  with  Debs,  having  been  enjoined 
from  taking  part  in  the  boycott ;  and  the  legality 
of  defendants'  acts  only  came  into  the  case  by  the 
court's  considering  whether  the  injunction  issued 
was  a  proper  one.  Phelan  was'  sentenced  to  jail 
for  six  months. 

The  principal  case  is,  of  course,  that  of  U.  S. 
V.  Debs,'*  but  this  case  was  expressly  based  on 
the  Anti-Trust  Act,  and  the  only  question  left 
to  the  Supreme  Court  on  habeas  corpus  (158 
U.  S.)  was  whether  the  Circuit  Court  had  jui'is- 
diction  of  the  case  sitting  as  a  court  of  equity 
under  the  Anti-Trust  Act  or  otherwise.  The 
case  is  more  fully  discussed  in  §§  66,  67, 

The  most  recent  boycott  case  in  any  state 
court  occurred  in  Oregon,  in  December,  1894.^ 
Here  the  court  refused  on  the  facts  to  grant  the 
injunction,  and  sustained  the  demurrer  to  the 
bill,  which  set  forth  that  the  defendants  were  all 
printers,  members  of  a  printers'  union,  with  by- 
laws which  expressly  provided  for  boycotting  in 
certain  cases ;  that  the  plaintiff  refused  to  sub- 
mit to  the  regulations  of  the  union,  and  for  this 
reason,  and  because  he  would  not  discharge  a 
certain  messenger  boy,  they  ordered  a  strike, 
which  w^as  effective,  and  printed  advertisements 
in  the  newspapers  urging  persons  "  intending  to 

»«64F.  R.,  724. 

"'  Longshore  Printing  Co.  v.  Howell,  26  Ore.,  527. 
18 


"^I'i      HAxnnooK  'lo  the  labor  law 

have  job  priuting  tlono  to  bear  iu  mini}  that  the 
Longshore  establishment  was  a  non-imion  of- 
fice," visited  niimerous  customers  of  the  plain- 
tiff, and  held  out  the  threat  to  them  that  if  they 
did  not  "withdraw  their  business  from  the  plain- 
tift*  the  union  and  their  friends  would  withdraw 
their  business  from  them  ;  that  the  plaintiff  put 
in  a  bid  to  the  Common  Council  of  the  city  of 
Portland  for  the  city  printing  for  the  year,  which 
was  the  lowest  bid,  but  the  defendants  threatened 
the  members  of  the  city  council  with  injury  to 
their  private  business  interests  if  they  accepted 
it,  and  for  that  reason  alone  they  refused  it,  and 
otherwise  persistently  visited  and  harassed  the 
patrons  of  plaintiff  with  demands  that  they  cease 
to  give  their  work  to  it,  closing  with  the  usual 
allegations  that  it  was  a  conspiracy  to  destroy  the 
plaintiff's  business.  The  court  quotes  a  great 
deal  of  excellent  law,  but  it  certainly  is  difficult 
to  see  why  the  allegations  in  the  bill  did  not  set 
forth  a  pretty  substantial  boycott. 

There  is  a  still  more  recent  case  to  the  same 
effect,  where  an  injunction  was  refused  against  a 
labor  union  from  parading  the  streets  with 
placards  calling  attention  to  the  fact  that  plain- 
tiff was  an  enemy  of  organized  labor;  but  the 
opinion  is  of  httle  authority.^ 

The  latest  case  of   authority  is   that  of  the 

^*  De  Pear  v.  The  Cooks'  Union,  District  Court  of  Colorado, 
27  Chicago  Legal  News,  387. 


OF   THE   UNITED   STATES  27.~ 

Uuited  states  v.  Cassidy,"^  which  was  a  raih'oad 
case  in  the  District  Court  of  California,  growing 
out  of  the  Pullman  strike.  Defendants  were  in- 
dicted for  conspiracy,  and  Judge  Morrow  in 
charging  the  jury  repeats  the  old  rule  that,  Avhile 
employees  may  combine  and  form  unions  for 
their  own  benefit  and  protection,  they  cannot 
combine  and  quit  work  for  the  purpose  of  com- 
pelling their  employer  to  join  in  a  boycott  against 
a  third  party. 

There  are  a  few  other  decisions  on  the  trade 
boycott.  Thus,  in  Bohn  Mfg.  Co.  v.  Hollis,=»  a 
large  number  of  retail  lumber  dealers  had  formed 
a  voluntary  association  by  which  they  mutually 
agreed  that  they  would  not  deal  with  any  manu- 
facturer or  wholesale  dealer  who  should  sell 
lumber  directly  to  consumers  at  any  point  where 
a  member  of  the  association  was  carrying  on  a 
retail  3^ard,  and  provided  in  their  by-laws  that 
whenever  any  dealer  made  such  a  sale  their 
secretary  should  notify  all  the  members  of  the 
fact.  The  plaintiff  having  made  such  a  sale,  the 
secretary  (Hollis)  threatened  to  give  notice  ac- 
cordingly ;  and  an  injunction  restraining  him 
from  so  doing  was  denied.  It  would  seem  this 
decision  can  be  sustained  on  a  ground  not  ad- 
verted to  in  the  opinion,  that  the  dealers'  union 


«»  67  F.  R.,  700. 

»»  54  Minn.,  223;  55  N.  W.,  1119, 


27G  HANDBOOK    TO   THE    LABOR    LAW 

being  legul  (see  §  54),  he  was  a  member  of  it, 
and  hence  had  voUmtarily  assented  to  whatever 
boycotting  might  result ;  moreover  (as  the  couii 
observe)  they  were  not  proposing  to  send  the 
notice  to  any  but  other  members  of  the  associ- 
ation. 

This  is  certainly  the  only  ground  upon  which 
Olive  V.  Van  Patten  ^'  can  be  distinguished,  de- 
cided the  same  year  by  the  Texas  Court  of  Ap- 
peals. This  was  a  case  where  a  petition  was 
brought  by  the  proprietor  of  a  saw-mill  against 
the  defendants,  who  had  entered  into  a  lumber 
dealers'  association  of  which,  however,  the  plain- 
tiff was  not  a  member,  with  a  by-law  to  the 
same  effect,  that  when  any  manufacturer  or 
wholesale  dealer  should  sell  to  any  person  not  a 
dealer,  at  a  jDoint  where  there  was  no  dealer,  such 
sales  should  be  reported  to  the  secretary,  who 
should  thereupon  notify  the  members  of  the  as- 
sociation, whereupon  it  should  be  their  duty  to 
discontinue  their  patronage  of  such  wholesale 
dealer.  In  this  case  the  circular  had  been  actu- 
ally sent  by  the  secretary  to  the  members  of  the 
association,  and  the  plaintiff  therefore  claimed 
damages,  as  well  as  an  injunction  restraining  de- 
fendants from  "  further  perpetration  and  continu- 
ation of  their  wrongful  acts  " — i.e.,  from  com- 
bining not  to  buy  of  the  plaintiff.     The  court 

"  25  S.  W.,  428. 


OF   THE   UNITED   STATES  277 

below  had  sustained  a  general  demurrer  to  the 
petition,  and  its  judgment  was  reversed  upon 
the  authority  of  Delz  v.  Winfree.^"  Tliis  latter 
was  a  case  where  defendants  had  agreed  not  to 
sell  to  the  plaintiff,  who  was  a  butcher,  any  live 
animals  or  slaughtered  meat,  and  induced  others 
not  to  sell  to  him  also  ;  and  it  was  decided  that 
while  a  person  has  the  right  to  refuse  to  have 
business  relations  with  another,  whether  the  re- 
fusal is  based  upon  reason,  whim,  prejudice,  or 
mahce,  "  the  privilege  is  limited  to  the  individ- 
ual action  of  the  party  who  asserts  the  right. 
It  is  not  equally  true  that  one  person  may  from 
such  motives  influence  another  person  to  do  the 
same  thing." 

It  will  be  seen  that  both  these  cases  are  di- 
rectly contrary  to  Bohn  v.  Hollis,  unless  the  fact 
that  in  neither  was  the  plaintiff  a  member  of  the 
dealers'  association  makes  a  difference ;  and,  of 
course,  the  legality  of  such  associations,  as  be- 
tween themselves  and  their  members,  depends 
not  upon  the  law  of  boycotting,  but  upon  the 
sole  question  whether  they  are  in  restraint  of 
trade,  which  has  been  fully  discussed  in  §  54 
above. 

But  Bohn  V.  Hollis  was  expressly  dissented 
from  in  Jackson  v.  Stanfield  (1894),^^  one  of  the 


^'^  80  Texas,  400;   IG  S.  W.,  111. 
"36  N.  E.,  345. 


278        HANDBOOK   TO   TIIK   LABOR   LAW 

most  instructive  and  recent  cases  on  tlie  trade 
boycott.  The  Retail  Lumber  Dealers'  Associa- 
tion of  Indiana,  by  its  by-laws,  gave  an  active 
member  a  claim  against  a  wholesaler  for  selling 
to  a  person  not  a  regular  dealer  in  such  mem- 
ber's community,  provided  for  a  hearing  of  the 
claim  by  a  committee,  and  required  members  to 
refuse  to  patronize  a  wholesaler  who  ignored  the 
committee's  decision.  The  plaintiff,  who  was 
not  a  regular  dealer,  underbid  the  defendant  on 
a  contract,  but  the  wholesalers  refused  to  sell  to 
him,  and  he  was  obliged  to  abandon  the  contract 
because  the  defendant,  an  active  member  of  the 
association,  had  previously  enforced  a  claim 
against  the  wholesaler  who  had  sold  to  the 
plaintiff,  and  expressed  an  intention  of  continu- 
ing to  enforce  such  claims.  The  court  granted 
a  perpetual  injunction  against  the  defendant 
from  making  any  claim  under  the  by-laAvs  of  the 
association  against  any  person,  though  a  mem- 
ber of  it,  who  sold  to  the  plaintiff,  thereby  prac- 
tically annulling  the  association's  by-law ;  and, 
moreover,  allowed  damages  against  the  defend- 
ant for  the  amount  which  the  plaintiff  had  lost 
by  abandoning  his  contract.  In  this  case  will 
be  found  a  full  discussion  of  all  the  recent  cases. 
The  case  of  Cote  v.  Murphy,^  decided  in  1894, 
is  particularly  interesting  in  that  it  justifies  a 

3*  28  Atlantic,  100 :   159  Pa.  St  ,  420. 


OB'   THE   UNITED  STATES  279 

boycott,  or  combination  of  employers,  when 
made  solely  in  defence  to  a  combination  of  em- 
ployees to  raise  wages,  although  the  latter  com- 
bination was  expressly  legalized  by  the  Pennsyl- 
vania statute,  which,  however,  did  not  include 
employers  within  its  provisions.  Incidentally 
the  court  raise  a  query  whether  the  statute  is 
not  unconstitutional  as  being  class  legislation, 
and  that  the  legalizing  such  combinations  in 
labor  disputes  ought  to  extend  to  both  parties  to 
the  contract,  which  is  substantially  the  case  in 
the  English  statute. 

A  still  later  case  is  that  of  Barr  v.  the  Essex 
Trades  Council,'^  where  the  proprietor  of  a 
newspaper  brought  a  bill  in  equity  against 
eighteen  labor  unions  in  the  city  of  Newark, 
one  of  which  was  incorporated,  upon  the  follow- 
ing complicated  but  interesting  state  of  facts : 
These  labor  unions  had  established  an  elaborate 
system,  under  the  name  of  Essex  Trades  Council, 
a  voluntary  association  composed  of  delegates 
from  each  union,  by  which,  upon  reports  of  the 
individual  members  of  the  unions  dealing  with 
any  shop  or  place  of  business,  made  upon  blank 
slips,  to  the  central  body,  cards  were  issued  by 
the  Essex  Trades  Council,  to  be  displayed  in 
shops,  stating  that  the  establishments  so  favored 
were  "  especially  deserving  the  patronage  of  or- 

3530  Atlantic,  881. 


280         HANDBOOK    TO    THE   LA  BO  11    LAW 

gauized  fair  consumers."  A  failure  by  any 
union  to  report  upon  a  shop  with  Avhich  its 
members  dealt  for  two  consecutive  mouths, 
placed  its  products  under  the  ban  of  organized 
labor  as  represented  by  the  Essex  Trades  Coun- 
cil. The  next  step  was  an  agreement  in  writ- 
ing purporting  to  be  made  between  the  Essex 
Trades  Council  and  a  tradesman,  by  which  the 
latter,  "  in  return  for  the  patronage  of  united 
fair  consumers,"  promises  and  agrees  to  buy  as 
a  consumer,  engage  as  employer,  keep  as  dealer, 
as  exclusively  as  he  can,  such  labor  and  goods 
as  may  be  announced  as  "  fair  "  by  a  particular 
union  and  endorsed  by  the  Essex  Trades  Coun- 
cil. The  cards  then  issued,  certifying  that  the 
person  so  favored  is  a  "fair  consuming  dealer," 
were  of  such  size,  color,  and  appearance  that  if 
publicly  displayed  in  stores  or  places  of  business 
would  attract  attention  ;  and  there  was  also  a 
small  pamphlet  published  by  the  Essex  Trades 
Council,  called  "  The  Fair  List  of  Newark,  N.  J.," 
announced  to  be  "  for  the  information  of  peoj)le 
who  buy  service  or  product,  and  who  have  en- 
terprise enough  to  seek  to  place  their  money 
where  it  will  do  the  most  good,"  containing 
names  and  addresses  of  tradesmen,  persons  in 
business,  lawyers,  and  others  iu  Newark.  This 
is  perhaps  the  most  elaborate  system  of  at- 
tempted labor  union  for  all  purposes  of  trade 
or  dealings,  including  a  combination  system  of 


OF   THE   UNITED   STATES  281 

general  boycott  upon  all  the  world  not  so  fa- 
vored, which  has  jet  come  to  the  notice  of  the 
courts. 

Upon  this  state  of  facts  the  complainant  had 
made  a  contract  to  employ  what  is  called  "plate 
matter  " — that  is,  made  of  stereotyped  plates  for 
certain  sheets  of  newspaper,  which  plates  were 
manufactured  in  Ncav  York,  and  were  used  gen- 
erally throughout  the  state  of  New  Jersey  by 
newspapers,  except  one  in  the  city  of  Newark, 
without  complaints  by  the  typographical  unions. 
All  his  employees  were,  however,  members  of 
the  local  typographical  union,  which  had  declared 
against  the  use  of  such  plate  matter  in  the  city 
of  Newark,  as  the  plaintiff  knew.  He  sought  to 
have  this  resolution  relaxed  in  favor  of  his  pa- 
per; but,  on  its  refusal  so  to  do,  nevertheless 
informed  his  foreman  that  he  would  use  plate 
matter  on  and  after  March  13,  1894,  but  that 
the  union  scale  of  wages  would  be  maintained, 
and  that  he  would  gladly  retain  the  services  of 
such  as  might  be  willing  to  stay.  Some  of  his 
employees  remained,  but  others  left ;  and  the 
union  withdrew  its  endorsement  of  the  news- 
paper, and  informed  the  Essex  Trades  Council 
of  the  fact,  whereupon  the  Council  issued  a  cir- 
cular in  the  following  words  :  "  Friends,  one  and 
all !  Leave  this  council  -  boycotting  Newark 
Times  alone.  Cease  buying  it !  Cease  handling 
it !     Cease  advertising  in  it !     Keep  the  money 


282         HANDBOOK    TO   THE   LABOR    LAW 

of  fair  men  inoviug  only  among  fair  men.  Boy- 
cott the  boycotter  of  organized  fair  labor."  This 
circular  was  distributed  in  the  city  of  Newark ; 
various  other  sm;iller  circulars  were  issued,  and 
the  bill  alleged  that  in  ccmsequence  many  deal- 
ers in  and  purchasers  of  the  complainant's  pa- 
per, and  advertisers  therein,  had  been  intimidated 
from  continuing  to  buy  and  advertise  therein. 
The  court  found  that  an  injury  had  thereby 
been  done  the  complainant's  business,  and,  with- 
out deciding  that  the  action  of  the  defendants 
constituted  a  criminal  conspiracy,  the  statute  of 
New  Jersey  now  requiring  an  overt  act,  held  that 
they  had  clearly  combined  to  injure  the  plain- 
tiffs property  and  freedom  in  disposing  of  his 
own  capital  and  managing  his  own  business ; 
that  they  were,  therefore,  liable  for  damages, 
and  that,  although  the  boycott  was  not  con- 
ducted with  violence  or  physical  intimidation, 
the  moral  intimidation  caused  by  the  complain- 
ant's fear  of  loss  of  business  was  sufficient  to 
make  the  combination  unlawiiul,  and  an  injunc- 
tion was  granted  prohibiting  defendants  "  from 
distributing  or  circulating  any  circulars,  printed 
resolutions,  bulletins,  or  other  publications  con- 
taining appeals  or  threats  against  the  NeAvark 
Times,  and  from  making  any  threats  or  using 
any  intimidation  to  the  dealers  or  advertisers  in 
such  newspapers." 

Finally,  the  last  reported  case  on  the  subject 


OF   THE    UNITED   STATES  5383 

of  boycotting  ^  goes  back  to  the  criminal  law, 
and,  like  almost  the  first  American  case  on  the 
subject,  occui'red  in  Yermont.  Defendants  were 
indicted  for  conspiracy  to  prevent  one  McClm-e 
from  working  for  the  Wetmore  &  Morse  Granite 
Co.,  by  threats  and  intimidation,  and  for  coercing 
granite  cutters  to  join  the  National  Stone  Cutters' 
Union,  and  preventing  other  granite  cutters  from 
obtaining  work  or  entering  the  emiDloyment  of 
the  complainant,  by  threatening  McClure  that,  if 
he  did  not  join  the  union,  they  would  organize  a 
strike  both  against  him  and  the  complainant 
company.  The  conviction  of  the  defendants  was 
sustained,  and  the  case  of  State  v.  Stewart  re- 
affirmed. 

§  59.    American  Statutes  on  Boycotting Such 

being  the  court  decisions  on  boycotting  at  com- 
mon law  and  under  the  English  statute,  we  are 
now  in  a  position  to  understand  the  meaning  and 
effect  of  th^  several  statutes  which  have  been 
passed  in  the  states  of  the  Union  upon  this  sub- 
ject ;  and  in  the  first  place,  it  may  be  well  to 
remind  the  reader  of  the  ordinary  statutes 
against  intimidation  by  one  person,  or  by  indi- 
viduals acting  in  combination,  which  were  set 
forth  in  §  5  above.  Of  course,  in  the  states 
which  have  such  statutes  applying  to  interference 

^«  State  V.  Dyer,  32  Atlantic  Rep.,  814. 


284         HANDBOOK    TO   THE    LABOlt    LAW 

with  or  intimidation  of  employees  or  employers 
by  individuals,  and  rendering  such  acts  criminal 
or  penal,  a  combination  of  two  or  more  jDersons 
to  perform  any  such  act,  or  to  attain  any  end  to 
which  the  commission  of  such  acts  is  a  necessary 
means,  would  become  by  the  very  force  of  such 
statutes  a  boycott  or  unlawful  conspiracy.  In 
this  section,  therefore,  we  have  only  left  to  con- 
sider such  statutes  as  exclusively  apply  to  com- 
binations ;  and  they  are  as  follows : 

It  is  forbidden  by  statute,  or. made  criminal  or 
penal,  to  conspire  for  the  following  purposes 
respectively  in  the  states  named.     Thus, 

(1)  In  Wisconsin,  for  the  purpose  of  prevent- 
ing any  person  from  j)rocuring  work, 

(2)  for  the  purpose  of  procuring  the  discharge 
of  any  workman, 

(3)  or  for  the  employer  to  attempt  to  prevent 
any  person  from  obtaining  employment  whom 
he  has  discharged.^ 

(4)  To  conspire  to  wilfully  injurfe  or  destroy 
or  obstruct  the  use  of  the  property  of  another, 
or  to  obstruct  him  in  the  prosecution  of  his  law- 
ful business  or  pursuits.^     This  is  substantially 

>  Wis.,  1895,  240,  1,  2. 

•^R.  I.,  242,40;  Me.  R.  S.,  1883,  126,  18;  Wis.,  1887,  287; 
R.  S.,  446  a.  But  for  much  the  most  drastic  law  of  this  sort 
see  the  laws  of  Illinois,  Michigan,  and  Kansas,  printed  in  full 
in  the  note  to  §  62,  which,  although  primarily  applying  to 
railways,  seem  equally  to  apply  to  all  other  corporations,  per- 
sons, or  occupations. 


OF   THE   UNITED   STATES  285 

the  common  law  of  boycotts  as  laid  clown  in  the 
leading  English  and  American  cases,  and  in  the 
English  statute  of  1875. 

(5)  It  is  made  a  criminal  offence  for  any  one 
or  more  persons  to  persistently  follow  a  person 
in  a  disorderly  manner,  or  injui*e,  or  threaten  to 
injure,  his  property  with  intent  to  intimidate 
him.^  This  is  substantially  similar  to  the  Rhode 
Island  statute  above,  with  the  exception  that, 
following  the  English  statute,  it  adds  the  offence 
of  picketing,  and  seems  to  prohibit  it  even  by 
one  or  two  persons,  at  least  when  done  in  a  dis- 
orderly manner.  The  special  subject  of  picket- 
ing will  be  discussed  in  the  next  section. 

(6)  A  combination  "  to  commit  any  act  in- 
jurious to  trade  or  commerce."^  This  would 
appear  to  be  an  omnibus  clause  which  might  let 
in  almost  anything,  not  only  ordinary  boycotts, 
but  agreements  or  trusts  tending  to  monopoly, 
or  in  general  restraint  of  trade.  This,  of  course, 
was  the  common  law,  but  it  will  be  remembered 
that  in  England,  by  recent  statutes,  combinations 
are  no  longer  criminal  so  far  as  they  are  simply 
in  restraint  of  trade.  The  tendency  in  this 
country  through  the  Anti-Trust  Act  has  been  in 
the  other  direction,  and  it  is  probable  that  the 
effect  of  that  statute  will  be  to  make  many  a 
combination  criminal,  as  in  restraint  of  trade  or 

'Ct.,  1518.  <N.  Y.  P.  C,   168. 


286         HANDBOOK    TO   THE    LABOK    LAW 

interstate  commerce,  which  would  not  otherwise 
have  been  so.     (Compare  §  66  below.) 

The  efforts  of  the  labor  unions  in  England 
have  recently  been  directed  to  confining  intimi- 
dation to  threats  of  actual  injury  to  person  or 
property,  but  so  far  they  have  not  been  success- 
ful, unless  indeed  the  recent  general  statute  be 
held  to  cover  such  cases,  and  upon  this  there  is 
as  yet  no  decision. 

There  are,  however,  more  elaborate  statutes 
in  the  states  of  New  York,  Illinois,  Michigan, 
Minnesota,  Tennessee,  and  Texas,  but  as  they 
establish  no  new  principle  in  the  law  of  boycott, 
want  of  space  precludes  setting  them  forth  at 
length  in  the  text.  They  will  be  found  copied 
below. ^ 

*  If  two  or  more  persons  conspire,  either 

(1)  To  prevent  another  from  exercising  a  lawful  trade  or 
calling,  or  doing  any  lawful  act,  by  force,  threats,  intimida- 
tion, or  by  interfering  or  threatening  to  interfere  with  tools, 
implements,  or  property  belonging  to  or  used  by  another,  or 
with  the  use  or  employment  thereof  ;  or, 

(2)  To  commit  any  act  injurious  to  the  public  health,  to 
public  morals,  or  to  trade  or  commerce,  or  for  the  perversion 
or  obstruction  of  justice,  or  of  the  due  administration  of  the 
laws  ; 

Each  of  them  is  guilty  of  a  misdemeanor.  N.  Y.  P.  E., 
168;  Minn.,  6423. 

If  any  two  or  more  persons  conspire  and  agree  together  [or 
the  officers  or  executive  committee  of  any  society,  or  organi- 
zation, or  corporation  shall  issue  or  utter  any  circular  or  edict 
as  the  action  of  or  instruction  to  its  members,  or  any  other 
persons,  societies,  organizations,  or  corporations,  for  the  pur- 


OF   THE    UNITED    STATES  287 

On  the  other  hand,  a  few  states  are  beginning 
to  pass  statutes  enlarging  the  liberty  of  laboring 


pose  of  establishing  a  so-called  boycott  or  black  list ;  or  shall 
post  or  distribute  any  written  or  printed  notice  in  any  place] 
with  the  fraudulent  or  malicious  intent  wrongfully  and 
wickedly  to  injure  the  person,  character,  business,  or  employ- 
ment, or  property  of  another,  .  .  .  or  to  do  any  illegal 
act  injurious  to  the  public  trade,  health,  morals,  police,  or  ad- 
ministration of  public  justice,  or  to  prevent  competition  in 
the  letting  of  any  contract  by  the  state  or  the  authorities  of 
any  county,  city,  town,  or  village,  or  to  induce  any  person 
not  to  enter  into  such  competition,  .  .  .  they  shall  be 
deemed  guilty  of  a  conspiracy,  shall  be  imprisoned  in  the 
penitentiary  not  exceeding  three  years,  or  fined  not  exceed- 
ing $2,000.  111.,  38,73.  (The  part  in  brackets,  as  it  is  inter- 
esting to  note,  has  been  repealed.) 

If  any  two  or  more  persons  shall  combine  for  the  purpose 
of  depriving  the  owner  or  possessor  of  property  of  its  lawful 
use  and  management,  or  of  preventing,  by  threats,  sugges- 
tions of  danger,  or  any  unlawful  means,  any  person  from  be- 
ing employed  by  or  obtaining  employment  from  any  such 
owner  or  possessor  of  property  on  such  terms  as  the  parties 
concerned  may  agree  upon,  such  persons  so  offending  shall 
be  fined  not  exceeding  $500,  or  confined  in  the  county  jail 
not  exceeding  six  months.     111.,  38,  206. 

It  is  unlawful  for  corporations,  their  officers  or  agents  to 
"  threaten  to  discharge  any  such  employee  or  employees  for 
trading  or  dealing,  or  for  not  trading  or  dealing,  as  a  customer 
or  patron  with  any  particular  merchant  or  other  person  or 
class  of  persons  in  any  business  calling,  or  to  notify  any  em- 
ployee or  employees,  either  by  general  or  special  notice, 
directly  or  indirectly,  secretly  or  openly  given,  not  to  trade 
or  deal  as  customer  or  patron  with  any  particular  merchant  or 
person  or  class  of  persons,  in  any  business  or  calling,  under 
penalty  of  being  discharged  from  the  service  of  such  corpo* 


288  HANDROOK    TO   THE    LABOR   LAW 

men  to  form  offensive  and  defensive  combina- 
tions, and  narrowing  the  common  law  of  boy- 
ration  doing  business  in  this  state  as  aforesaid."  Tenn.,  1887, 
208,  1. 

If  any  two  or  more  persons  shall  associate  themselves  to- 
gether in  any  society  or  organization  whatever,  with  intent 
and  for  the  purpose  of  preventing,  in  any  manner  whatever, 
any  person  or  persons  whomsoever  from  apprenticing  himself 
or  themselves  to  learn  and  practise  any  trade,  craft,  vocation, 
or  calling  whatsoever,  or  for  the  purpose  of  inducing,  by 
persuasion,  threats,  fraud,  or  any  other  means,  any  appren- 
tice or  apprentices  to  any  such  trade,  craft,  vocation,  or  call- 
ing, to  leave  the  employment  of  their  employer  or  employers, 
or  for  the  purpose,  by  any  means  whatever,  of  preventing  or 
deterring  any  person  or  persons  whomsoever,  from  learning 
or  practising  any  such  trade,  craft,  vocation,  or  calling  what- 
soever; every  such  person  so  associating  himself  in  such 
society  or  organization  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  upon  conviction  thereof,  shall  be  punished  as 
prescribed  in  §  4310  of  this  code.     Ga.,  4498. 

An  "  unlawful  assembly  "  is  the  meeting  of  three  or  more 
persons,  with  intent  to  aid  each  other  by  violence,  or  in  any 
other  manner,  either  to  commit  an  offence  or  illegally  to  de- 
prive any  person  of  any  right,  or  to  disturb  him  in  the  enjoy- 
ment thereof. 

If  the  purpose  of  the  unlawful  assembly  be  to  prevent  any 
person  from  pursuing  any  labor,  occupation,  or  employment, 
or  to  intimidate  any  person  from  following  his  daily  avoca- 
tion, or  to  interfere  in  any  manner  with  the  labor  or  employ- 
ment of  another,  the  punishment  shall  be  by  fine  not  exceed- 
ing §500. 

If  the  persons  unlawfully  assembled  together  do,  or  at- 
tempt to  do,  any  illegal  act,  all  those  engaged  in  such  illegal 
act  are  guilty  of  riot. 

If  any  person,  by  engaging  in  a  riot,  shall  prevent  any  other 
person  from  pursuing  any  labor,  occupation,  or  employment, 


OF   THE   UNITED   STATES  289 

cotting.^  (Compare  also  statutes  set  forth  in 
§§  51,  52,  55.) 

or  intimidate  any  other  person  from  following  his  daily  avo- 
cation, or  interfere  in  any  manner  with  the  labor  or  employ- 
ment of  another,  he  shall  be  punished  by  confinement  in  the 
county  jail  not  less  than  six  months  nor  more  than  one  year. 
Tex.  P.  C,  279,  289,  295,  and  304. 

The  legislature  of  Louisiana,  by  a  resolution  July  12,  1894, 
condemned  the  efforts  of  foreign  emissaries  to  disturb  the 
public  peace  by  fomenting  discord  between  employers  and 
employees  at  a  time  "  when  there  is  no  cause  for  discontent, 
and  no  grievances  to  be  redressed,"  and  commended  the  rail- 
road operatives  of  the  state  for  repulsing  the  overtures  of 
such  agitators  and  refusing  to  join  in  the  Chicago  strike. 
La.,  1894,  149. 

*  The  orderly  and  peaceable  assembling  or  co-operation  of 
persons  employed  in  anj'  calling,  trade,  or  handicraft,  for  the 
purpose  of  obtaining  an  advance  in  the  rate  of  wages  or  com- 
pensation, or  of  maintaining  such  rate,  is  not  a  conspiracy. 
N.  Y.  P.  C,  170;  Minn.,  6424. 

And  no  conspiracy  is  punishable  criminally  unless  it  is  one 
of  those  specifically  enumerated  (crime,  felony,  to  commit 
or  charge;  and  see  note  5).  Minn.,  6423;  Mon.  P.  C,  322 
(see  §  55). 

No  agreement  except  to  commit  a  felony  upon  the  person 
of  another,  or  to  commit  arson  or  burglary,  amounts  to  a 
conspiracy,  unless  some  act  beside  such  agreement  be  done 
to  effect  the  object  thereof,  by  one  or  more  of  the  parties  to 
such  agreement.  N.J.  Rev.,  p.  261,  §  191;  Minn.,  6425; 
Mon.  P.  C,  323. 

In  New  Jersey  persons  lawfully  and  peacefully  persuading, 
advising,  or  encouraging  other  persons  to  enter  into  any  com- 
bination for  or  against  leaving  or  entering  into  the  employ- 
ment of  other  persons,  are  by  the  express  statute  declared  not 
conspirators.     N.  J.,  p.  1296,  §  9. 

See  also  §  55  for  Maryland  and  Montana  laws. 
19 


290        HANDBOOK    TO   THE   LABOU   LAW 

§  60.  Picketing — Patrolling  or  picketing  may 
be  defined  to  be  the  besetting  of  the  works  or 
place  of  business  of  an  employer  for  the  purpose 
of  persuading  or  preventing  men  from  taking 
work  or  customers  to  deal  with  him,  or  the  fol- 
lowing of  his  employees  in  the  street  for  the 
purpose  of  inducing  them  to  leave  their  employ- 
ment ;  "  picketing "  being  the  usual  English 
word,  and  "  patrolling  "  the  American  for  the 
same  thing.  It  may  be  done  by  combination,  so 
as  to  amount  to  a  conspiracy  or  boycott,  or  con- 
sist merely  in  the  individual  cases,  in  which 
case  the  only  question  will  be  whether  it 
amounts  to  illegal  intimidation ;  and  we  may 
state  at  once  that  the  law,  both  English  and 
American,  is  pretty  well  settled  down  to  the 
view  that  picketing,  for  the  purpose  of  mere  per- 
suasion of  workmen  not  to  take  emploj^ment, 
and  not  attended  with  any  disorder  or  physical 
or  moral  intimidation,  is  now  held  legal ;  at 
least  when  conducted  in  a  reasonable  manner 
and  with  not  too  great  a  crowd.  Indeed,  the  re- 
cent English  decisions  have  gone  so  far  as  al- 
most to  prescribe  that  the  picket  of  two  persons, 
which  may  be  relieved  by  others,  like  a  guard, 
is  about  the  extent  to  which  the  law  will  allow 
it ;  and  these  two  persons  must,  of  course,  not 
be  guilty  of  intimidation  as  above  defined  ;  but 
we  must  note  that  the  law  will  be  much  more 
strict  when  the  persons  picketing  are  not  in  the 


OF   THE   UNITED   STATES  291 

employ  of  the  persons  against  whom  they  are 
acting  ;  and,  consequently,  can  have  no  direct 
personal  object  of  bettering  their  own  condition  ; 
and  we  may  further  venture  to  assert,  though 
there  is  yet  no  reported  case  which  makes  the 
distinction,  that  a  picket  conducted  for  the  pur- 
pose of  preventing  persons  from  trading  with  the 
employer  is  at  least  more  likely  to  be  illegal  (if 
indeed  it  is  not  always  illegal)  than  a  picket  es- 
tablished merely  to  see  that  other  workmen  do 
not  take  employment,  or  to  persuade  those  who 
are  still  in  the  employment  to  leave. 

There  are  quite  a  number  of  reported  deci- 
sions on  the  precise  point  of  picketing.  Perhaps 
the  first  English  case  was  that  of  Keg.  v.  Druitt, 
which  we  have  more  fully  discussed  in  another  • 
connection.^  It  arose  under  the  statute  of  6 
George  IV.,  p.  129,  and  also  22  Victoria,  chapter 
34,  section  1,  of  which  enacted  that  "  No  workman 
or  other  person,  etc.,  by  reason  merely  of  his 
entering  into  an  agreement  with  any  workman, 
etc.,  or  by  reason  merely  of  his  endeavoring 
peaceably  and  in  a  reasonable  manner  and  with- 
out threat  or  intimidation,  direct  or  indirect,  to 
persuade  others  to  cease  or  abstain  from  work, 
etc.,  shall  be  deemed  or  taken  to  be  guilty  of 
*  molestation  '  or  '  obstruction  '  within  the  mean- 
ing of  the  said  act."  But  in  spite  of  the  statute 
of  Victoria,  it  was  held  that  if  the  picketing 
'  10  Cox  C.  C,  592.      See  §§  55  and  57. 


292        HANDBOOK    TO   THE   LABOR   LAW 

amouuted  to  a  conspiracy  to  molest  the  employer 
in  carrying  on  his  business,  it  was  an  offence  at 
common  law,  and  also  that  the  use  of  insulting 
expressions  and  gestures  by  the  pickets  to  the 
non-union  work-people  amounted  to  intimida- 
tion, molestation,  or  obstniction,  as  these  words 
were  used  in  the  statutes  mentioned. 

"  '  Picketing  '  done  in  a  way  to  excite  no  rea- 
sonable alarm,  and  not  to  coerce  or  annoy  those 
who  were  subject  to  it,  would  not  be  an  offence. 
It  was  lawful  for  the  defendants  to  endeavor  to 
persuade  persons  who  had  not  joined  the  union 
to  do  so,  provided  that  persuasion  did  not  take 
the  shape  of  coercion  and  intimidation.  But 
even  if  abusive  language  and  gestures  were  not 
used,  if  the  pickets  were  so  placed  or  so  acted, 
by  watching  the  movements  of  the  work-people 
and  masters,  or  by  black  looks,  or  by  any  other 
annoyance,  as  in  the  judgment  of  the  jury  would 
be  likely  to  have  a  deterring  effect  in  the  minds 
of  ordinary  persons,  it  would  be  '  molestation ' 
and  '  obstruction  '  against  this  statute." 

It  is  noteworthy  that  in  this  case  all  the  de- 
fendants were  employees  of  the  complainant,  or 
at  least  w^ere  themselves  employees  of  master- 
tailors  in  London,  the  complainant  being  the 
well-known  tailor,  Poole ;  and  that  other  mas- 
ter-tailors in  the  same  vicinity  had  been  picketed 
by  the  same  combination  under  the  same  trade 
dispute. 


OF   THE   UNITED   STATES  293 

The  next  case  was  that  of  Reg.  v.  Shepherd.^ 
There  was  no  evidence  whatever  of  any  intimi- 
dation, or  of  anything  done  by  the  defendants, 
who  were  journeymen  shoemakers,  other  than 
walking  about  the  street  in  front  of  the  com- 
plainant's factory  and  advising  people  not  to  take 
employment  there,  in  a  civil  manner.  This  was 
clearly  a  case  of  la^v^ul  picketing,  and  the  court 
so  held. 

In  Reg.  V.  Hibbert,^  on  the  other  hand,  where 
there  was  evidence  that  a  large  number  of  per- 
sons waylaid  the  workmen  and  warned  them  not 
to  take  employment,  using  opprobrious  epithets, 
etc.,  the  picketing  was  held  unlawful. 

Then  came  the  case  of  Reg.  v.  Bauld,^  which 
was  an  indictment  against  the  defendants,  not 
apparently  employees  of  the  complainant,  to 
persuade  his  employees  to  quit  work  and  to  pre- 
vent others  from  taking  employment.  Baron 
Huddlestone,  who  was  not,  as  it  seems,  familiar 
with  the  growth  of  the  law  upon  the  subject,  in 
his  charge  to  the  jury,  denied  that  picketing  was 
lawful  except  for  the  purpose  of  obtaining  infor- 
mation simply,  or  finding  out  whether  the  men 
on  strike  were  secretly  working,  and  not  for  the 
purpose  of  besetting  the  employer  or  persuading 
others  not  to  work,  and  incidentally  expressed 


Ml  Cox  C.  C,  325.  M3  Cox  C.  C,  82. 

*  13  Cox  C.  C,  283. 


294        HANDBOOK   TO   THE   LABOR   LAW 

strong  disapproval  of  picketing  in  general,  hint- 
ing that  it  would  almost  certainly  become  illegal. 
This  case,  however,  arose  under  the  statute  of 
Victoria  of  1875,''  which  had  a  proviso  that,  "  At- 
tending at  or  near  the  house  or  place  where  a 
person  resides,  or  works,  or  carries  on  business, 
or  happens  to  be,  or  the  approach  to  such  house 
or  place  in  order  merely  to  obtain  or  communi- 
cate information,  shall  not  be  deemed  a  watching 
or  besetting  within  the  meaning  of  this  section." 
There  is  unquestionably  a  pretty  clear  inference 
that  any  other  kind  of  watching  or  besetting 
would  be  illegal  under  the  act,  but  there  is  no 
similar  statute  in  any  of  the  American  states. 

Then,  under  the  same  act,  the  case  of  Judge  v. 
Bennett  ^  arose,  which  is  interesting  as  justifying 
what  we  said  in  discussing  the  law  on  strikes 
(§  55),  that  a  threat  to  do  a  thing  may  be  illegal, 
the  doing  of  which  is  legal  enough.  It  was  a 
case  where  the  defendant,  the  secretary  of  a 
iinion  of  boot  and  shoe  operatives,  wrote  a  let- 
ter to  the  complainant,  stating  that  unless  she 
started  all  her  shops,  her  shop  would  be  picketed. 
All  the  picketing  done  was  that  of  two  men  pa- 
rading in  turns  before  the  front  of  the  shop  for 
three  days  in  an  orderly  manner,  and  not  per- 
sonally interfering  with  the  work-people.  The 
court  admitted  that   such   picketing  might  be 

'38  and  39  Vic,  Chap.  86,  §  7.  «  36  W-  R.,  103. 


OF   THE    UNITED    STATES  295 

legal  enough,  but  sustained  a  conviction  of  the 
defendant  on  the  ground  that  the  threat  to  picket, 
given  in  such  terms  as  to  make  the  employer 
afraid,  "svas  of  itseK  a  criminal  offence. 

The  next  English  case  on  the  subject  of  pick- 
eting is  that  of  Eeg.  v.  McKenzie,  which  oc- 
curred in  1892/  In  this  case  the  conviction  was 
not  sustained,  on  the  ground  that  the  indictment 
did  not  set  out,  as  the  statute  required,  "the 
acts  with  a  view  to  compel  the  prosecutor  to 
abstain  from  doing  which  the  defendant  followed 
the  prosecutor,"  which  is  better  law  than  gram- 
mar. The  case  is  therefore  only  interesting 
from  its  facts.  The  complainant  Avas  the  agent 
of  a  shipping  federation,  and  the  defendant  an 
officer  of  a  seamen's  union,  who  led  a  large 
crowd  of  persons  in  a  disorderly  manner  through 
the  street.  The  court  held  that  under  the  stat- 
ute (38  &  39  Vic,  C.  86)  it  was  not  an  offence 
merely  to  follow  a  person  through  the  street,  al- 
though in  a  disorderly  manner,  but  only  to  do 
so  for  the  purpose  of  controlling  his  action  in 
some  unlawful  riot. 

But  finally  the  cases  of  Gibson  v.  Lawson  and 
Currau  v.  Treleaven  seem  to  have  licensed  pick- 
eting generally ;  but  they  arose  under  the  latest 
English  statute,'  which,  as  we  have  said,  goes 
farther  than  the  statutes  as  yet  passed  in  this 
country. 

1  67  L.  T.  R.,  N.  S.,  201.  8 17  Cox  C.  C,  354  et  seq. 


296        HANDBOOK   TO   THE   LABOR   LAW 

lu  this  country  there  have  been  several  im- 
portant decisions  on  picketinp;,  and  the  law  may 
be  said  to  be  generally  now  where  it  was  in 
England  before  the  recent  cases  last  mentioned. 
That  is,  the  following  or  besetting  workmen,  or 
the  picketing  of  factories  or  places  of  business, 
when  accompanied  by  any  violence  or  intimida- 
tion, or  conducted  in  an  unreasonable  and  tur- 
bulent manner,  is  unlawful,  and  will  be  enjoined  ; 
and  it  appears  that  such  intimidation  may  be 
moral,  as  by  the  use  of  opprobrious  epithets  or 
ridicule.^  In  Sherry  v.  Perkins,  decided  in  1887, 
a  bill  was  brought  by  Patrick  Sherry,  engaged 
in  the  shoe  manufacturing  business  in  Lynn, 
alleging  that  the  Lasters'  Protective  Union,  of 
which  the  defendants  were  president  and  secre- 
tary, respectively,  called  upon  him  on  January 
5th  to  inquire  as  to  the  wages  he  paid ;  that  on 
January  8th  certain  lasters  left  the  plaintiff's 
employment,  giving  as  a  reason  therefor  that  they 
did  not  dare  work  for  him  further  on  account 
of  the  defendants ;  that  in  order  to  intimidate 
others  from  taking  their  places,  and  to  prevent 
those  who  had  left  from  going  back,  the  defend- 
ants, with  the  assent  of  the  association  and  out 
of  its  moneys,  caused  to  be  carried  in  front  of 

•State  V.  Stewart,  59  Vt.,  272;  Sheny  v.  Perkins,  147 
Mass.,  212;  People  v.  Wilzig,  4  N.  Y.  Crim.,  403;  Holmes's 
Decision,  Supreme  Court  of  Massachusetts,  reported  Mass. 
Labor  Annual,  1895;  Murdock  v.  Walker,  152  Pa.  St.,  595. 


OF   THE   UNITED   STATES  297 

Sherry's  factory,  by  a  boy  hired  for  that  pur- 
pose, a  banner  bearing  the  follo^Ning  inscrip- 
tion :  "  Lasters  are  requested  to  keep  away  from 
P.  P.  Sherry's,  per  order  L.  P.  U."  The  biU 
further  alleged  threats  to  the  lasters  if  they  con- 
tinued in  the  plaintiff's  employment,  and  gen- 
eral intimidation,  and  prayed  that  the  defend- 
ants might  be  restrained  from  making  such 
banners  and  causing  them  to  be  carried,  and  for 
further  relief.  The  court  held  that  such  con- 
duct was  illegal  at  common  law,  and  that  it  was 
a  proper  case  for  an  injunction,  being  such  a 
nuisance  as  a  coui-t  of  equity  would  grant  relief 
against. 

In  Wilzig's  case  (see  also  §  58),  the  plaintiff 
was  proprietor  of  a  large  saloon  upon  Fourteenth 
Street,  New  York,  and  members  of  certain  labor 
unions  desired  him  to  discharge  many  workmen 
who  had  been  long  in  his  employ,  they  not  be- 
ing members  of  the  union,  and  to  pay  wages  at 
the  union  scale.  Plaintiff  refusing  to  do  so,  the 
defendants  caused  extensive  picketing  in  front 
of  plaintiff's  shop,  so  that  a  crowd  collected  in 
the  street.  Opprobrious  epithets,  signs,  and  ban- 
ners were  used,  and  the  plaintiff's  business  in- 
terfered with,  though  there  was  no  actual  phys- 
ical violence.  In  this  case  the  court  held  clearly 
that  intimidation  might  consist  in  mere  ridicule 
or  disorder,  or  any  such  conduct  as  would  pre- 
vent the  weak  or  gentle  from  trading  with  the 


298        HANDBOOK   TO   THE   LABOR   LAW 

plaintiff,  and  defendants  were  convicted  in  a 
criminal  action  for  conspiracy. 

The  case  decided  by  Mr.  Justice  Holmes  in 
Massachusetts,  in  the  spring  of  1895  (reported  in 
Mass.  Labor  Annual,  1895),  is  somewhat  similar 
to  this  on  the  facts,  so  that  the  line  between 
legal  and  illegal  picketing  must  be  clearly  drawn 
between  those  two  cases.  In  the  Boston  case, 
while  several  of  the  defendants  paraded  the 
street  in  front  of  the  plaintiff's  shop,  it  did  not 
appear  that  they  interfered  in  any  way  with  the 
plaintiff's  customers,  and  they  were,  in  fact, 
themselves  the  previous  employees  of  the  plain- 
tiff, but  had  struck  for  higher  wages.  In  neither 
case  was  there  any  physical  violence.  The  cases 
are,  therefore,  instructive,  as  tending  to  establish 
the  principle  we  have  contended  for  in  §  57 
above,  that  a  conspiracy  or  combination  of  the 
plaintiffs  employees,  having  a  legitimate  mo- 
tive, may  be  lawful  when  a  conspiracy  of  out- 
siders is  not ;  and  also,  that  a  combination  of 
workmen  merely  to  persuade  other  employees  of 
the  plaintiff  not  to  work,  or  not  to  take  work 
with  them,  may  be  sustained,  when  a  conspiracy 
to  persuade  the  plaintiff's  customers  not  to  deal 
with  him  will  not  be,  the  latter  being  more  evi- 
dently a  case  of  boycott. 

With  the  exception  of  this  unreported  case,  the 
latest  American  case  on  picketing  is  the  Penn- 
sylvania case  of  Miudock  r.  Walker,  where  the 


OF  THE   UNITED   STATES  299 

facts  consisted  in  the  following  of  plaintiff's  em- 
ployees to  their  homes,  and  the  besetting  both 
the  factory  and  their  lodging-places.  There  was 
no  physical  violence  or  actual  threats,  but  some 
ridicule  and  opprobrious  epithets  were  used. 
The  opinion  of  the  court  announces  clearly  the 
principle  that  a  court  of  equity  will  enjoin  even 
discharged  employees — they  were,  in  fact,  mem- 
bers of  the  labor  union — from  gathering  about 
the  plaintiff's  place  of  business,  and  from  follow- 
ing his  employees  to  and  from  work,  and  from 
gathering  about  their  boarding-places,  and  from 
any  and  all  manner  of  threats,  intimidation, 
ridicule,  and  annoyance  ;  and  to  the  same  effect 
see  the  case  of  the  Wick  China  Co.  v.  Brown, '° 
decided  in  New  Jersey  in  1894,  where  an  injunc- 
tion was  granted  against  members  of  a  union 
from  combining  to  prevent,  by  threats,  following, 
and  ridicule,  the  plaintiff's  employees  from  work- 
ing. 

We  conclude  that  in  the  United  States  to-day 
only  the  most  reasonable  and  peaceable  picket- 
ing, for  mere  purposes  of  information  and  ob- 
servation, is  lawful,  and  only  quiet  and  peaceable 
persuasion,  by  workmen  of  Avorkmen,  and  con- 
ducted in  such  a  way  as  not  to  amount  to  an 
elaborate  conspiracy  to  prevent  the  plaintiff 
from  getting  help ;  though  it  is   not  probably 

'^SO  Atl.,  261. 


300         HANDBOOK   TO   THE   LABOR   LAW 

necessary  to  render  such  action  lawful  that 
the  persons  doing  it  should  be  actually  em- 
plo3'ees  of  the  plaintiff ;  if  they  are  members  of 
the  labor  union  concerned  or  engaged  in  the 
trade,  so  as  to  have  a  solidarity  of  interest,  that 
will  be  sufficient ;  but  picketing  for  the  purpose 
of  interfering  with  the  plaintiff's  trade,  as  by 
driving  away  his  customers,  is  never  lawful. 

§  61.  Blacklisting.  The  blacklisting  of  em- 
ployees does  not,  of  course,  mean  the  making  a 
list  of  employees,  against  whom  the  employer 
has  a  complaint,  for  his  personal  and  private 
use  ;  but  the  exchanging  of  such  lists  with  other 
employers  for  the  purpose  of  preventing  them 
from  employing  such  employees  ;  or  the  advis- 
ing them  not  to  employ  men  who  have  been  dis- 
charged by  the  person  giving  the  advice.  It  is 
possible  that  blacklisting  might  be  carried  to 
such  an  extent  as  to  be  an  unlawful  combination 
under  the  common  law ;  but  it  is  doubtful 
whether  the  facts  would  ever  sufficiently  sustain 
an  indictment  for  combining  to  injure  any  defi- 
nite person.  So-called  "  characters  "  given  to  em- 
ployees and  servants  are  usually  held  privileged 
communications  when  unfavorable,  miless,  of 
course,  they  are  false  or  malicious,  in  which  case 
they  fall  under  the  head  of  libel.  But  a  few 
states  have  recent!}^  passed  statutes  forbidding 
blacklisting.     Thus,  in  North  Dakota,  the   ex- 


OF   THE    UNITED   STATES  301 

change  of  blacklists  between  corporations  is  pro- 
hibited by  the  constitution,'  aud  statutes  of 
Iowa,  Indiana,  Wisconsin,  Alabama,  Virginia, 
Montana,  and  Georgia  (in  Georgia  the  law  ap- 
plies only  to  corporations)  make  it  a  penal 
offence  wilfully  to  prevent  discharged  employ- 
ees from  obtaining  a  new  situation,^  and  the 
employee  is  to  be  furnished  with  the  cause  of 
his  discharge  ;  ^  but  a  truthful  statement  of  the 
reason  for  such  discharge  may  be  furnished 
other  employers ;  ^  while  in  Iowa,  Missouri, 
Montana,  Georgia,  and  Colorado  blacklists  are 
specially  prohibited  eo  nomine.^  So,  in  Indiana, 
Georgia,  and  Montana  there  is  a  law  requiring  an 
employer  discharging  an  employee  to  furnish 
him  with  a  written  statement  of  the  cause,  fail- 
ing which  he  may  not  blacklist  the  employee  ; 
provided,  that  such  statement  shall  not,  in  Geor- 
gia and  in  Indiana,  be  used  as  the  cause  for  an 
action  of  slander  or  libel.  In  Wisconsin,  com- 
binations of  employers  to  prevent  any  person 
from  obtaining  employment,  either  by  threats, 
promises,  or  by  circulating  blacklists,  or  by  any 

'  1  N.  D.  Const.,  §  212. 

2  Ind.,  7076;  Iowa,  1888,  57;  Mon.  Pol.  C,  3390;  Wis., 
1895,  240,  246;  Ga.,  1891,  p.  183;  1895,  321;  Col.,  1887,  p. 
58;  Va.,  1892;  Ala.,  1895,  321. 

*  Ind.,  Mon.,  Ga.  Thi.s  latter  part  of  the  statute  was  de- 
clared unconstitutional  in  Georgia.     See  note  9  below. 

^Ind.,  lo..  Wis.,  Va. ;  Mon.  Pol.  C.  3392. 

*  Mo.,  1891,  p.  122;   lo.,  Mon.,  Col.,  Ga.,  ib. 


^02        nAXDBOOK    TO    THE    LAHOR    LAW 

means  whatsoever,  or  for  the  purpose  of  so  pro- 
curing his  discharge,  are  made  a  misdemeanor. 
And  corporations  or  partnerships  allowing  black- 
listing by  their  agents  or  otherwise  are  some- 
times made  liable  to  the  employee  in  exemplaiy 
damages,^  and  railroads  in  treble  damages." 

There  is  a  very  early  reported  case,  disclosing 
a  blacklist,  in  Massachusetts,**  though  its  legality 
was  not  decided.  It  was  a  case  where  one  em- 
ployer sued  another  in  tort  for  enticing  work- 
men from  his  service,  and  an  agreement  of 
several  employers,  including  the  plaintiff  and 
defendant,  not  to  employ  workmen  Avhile  in  the 
service  of  either  of  the  others,  unless  such  work- 
men first  procured  a  written  discharge,  and  that 
each  party  should  keep  the  others  advised  of  the 
names  of  the  workmen  in  his  employment,  was  of- 
fered in  evidence.  This  was,  of  course,  a  typical 
blacklist.  The  defendants  objected  to  it  on  the 
ground  that  it  was  a  contract  and  not  evidence  of 
any  act  of  the  defendants  in  an  action  of  tort,  and 
the  document  was  excluded  ;  but  neither  court  nor 
counsel  say  anything  in  doubt  of  its  validity. 

But  the  statute  itself,  when  applying  only  to 
corporations,  has  been  held  unconstitutional  in 
one  state.^ 

«  Ind.,  1895,  110,  7076;  Mon.,  3391;   Ga.,  ib. 

■■  lo.,  Ga.,  ib. 

*  Boston  Glass  Manufactory  v.  Binney,  4  Pick.,  425. 

»   Wallace  v.  Georgia  C.  &  N.  Ry.  Co.,  22  S   E.,  579.    This 


OF    THE    UNITED    STATES  303 

§  62.  Special  Laws  Concerning  Railroad  Em- 
ployees, etc. — Many  states  liave  recent  statutes 

was  an  action  based  on  Georgia  Statutes,  1891,  p.  188,  declar- 
ing tliat  defendant  liad  employed  plaintiff  as  car  inspector, 
July  9,  1892,  and  discharged  him  on  August  12th ;  that  on 
August  18th  he  made  a  written  request  of  tlie  company  to 
give  him  a  specific  statement  in  writing  of  the  reasons  which 
had  caused  liis  discharge ;  that  he  had  waited  for  more  than 
twenty  days,  during  which  time  defendant  had  refused  or 
failed  so  to  do,  whereupon  it  became  liable  to  him  in  the  sum 
of  $5,000,  under  the  statute  referred  to.  The  city  court  of  At- 
lanta gave  judgment  dismissing  the  action.  The  opinion  of 
the  Supreme  Court  of  Georgia  appears  in  two  words  :  "  Judg- 
ment affirmed."  But  the  Reporter  prints  the  head  note 
called  a  "  Syllabus  by  the  Court  "  in  the  following  words  : 

''1.  The  public,  whether  as  many  or  one,  whether  as  a  mul- 
titude or  a  sovereignty,  has  no  interest  to  be  protected  or  pro- 
moted by  a  correspondence  between  discharged  agents  or 
employees  and  their  late  employers,  designed,  not  for  public 
but  for  private  information,  as  to  the  reasons  for  discharges, 
and  as  to  the  import  and  authorship  of  all  complaints  or 
communications  which  produced  or  suggested  them.  A 
statute  which  undertakes  to  make  it  the  duty  of  incorpo- 
rated railroads,  express,  and  telegraph  companies  to  engage  in 
correspondence  of  this  sort  with  their  discharged  agents  and 
employees,  and  which  subjects  them  in  each  case  to  a  heavy 
forfeiture,  under  the  name  of  damages,  for  failing  or  refus- 
ing to  do  so,  is  violative  of  the  general  private  right  of  silence 
enjoyed  in  this  state  by  all  persons,  natural  or  artificial,  from 
time  immemorial,  and  is  utterly  void  and  of  no  effect.  Lib- 
erty of  speech  and  of  writing  is  secured  by  the  constitution, 
and  incident  thereto  is  the  correlative  liberty  of  silence,  not 
less  important  nor  less  sacred.  Statements  or  communica- 
tions, oral  or  written,  wanted  for  private  information,  cannot 
be  coerced  l)y  mere  legislative  mandate  at  the  will  of  one  of 
the  parties  and  against  the  will  of  the  other.     Compulsory 


304         HAXDBOOK    TO   THE    LABOE    LAW 

expressly  forbidding,  or   limiting,  strikes  upon 
railroads.' 


private  discover^',  even  from  corporations,  enforced,  not  by 
suit  or  action,  but  by  statutory  terror,  is  not  allowable  where 
rights  are  under  the  guardianship  of  due  process  of  law. 

"  2.  It  follows  from  the  foregoing  that  the  act  of  October 
21,  1891,  entitled  'An  act  to  require  certain  corporations  to  give 
to  their  discharged  employees  or  agents  the  cause  of  their  re- 
moval or  discharge,  when  discharged  or  removed,'  is  uncon- 
stitutional, and  that  an  action  founded  thereon  for  the  recov- 
ery of  85,000  as  penalty  or  arbitrary  damages  fixed  by  the 
statute  for  non-compliance  with  its  mandate  cannot  be  sup- 
ported." 

'  In  Maine  and  New  Jersey  :  Any  employee  of  a  railroad 
corporation  who.  in  pursuance  of  an  agreement  or  combina- 
tion by  two  or  more  persons  to  do,  or  procure  to  be  done, 
any  act  in  contemplation  or  furtherance  of  a  dispute  be- 
tween such  corporation  and  its  employees,  unlawfully,  or 
in  violation  of  his  duty  or  contract,  stops,  or  unnecessarily 
delays,  or  abandons,  or  in  any  way  injures,  a  locomotive,  or 
any  car,  or  train  of  cars  on  the  railway  track  of  such  corpora- 
tion, or  in  any  way  hinders,  or  obstructs  the  use  of  any  loco- 
motive, .car,  or  train  of  cars  on  the  railroad  of  such  corpora- 
tion, shall  be  punished  by  a  fine  not  exceeding  five  hundred 
dollars,  or  imprisonment  in  the  state  prison,  or  in  jail,  not  ex- 
ceeding one  year  (Me.,  123,  6).  So  sub.stantially  in  New 
Jersey,  the  penalty  being  8500,  or  six  months  (N.  J.  Rev., 
1877,  p.  946,  §  173,  175). 

Whoever  by  any  unlawful  act,  or  wilful  omission  or  neg- 
lect, obstructs  or  causes  to  be  obstructed  any  engine,  or  car,  or 
aids  therein,  or  who,  having  charge  of  any  locomotive  . 
or  car,  wilfully  stops,  leaves,  or  abandons  it,  or  renders,  or 
aids  in  rendering  it  unfit  for,  or  incapable  of  immediate  use, 
with  intent  thereby  to  hinder^  delay,  obstruct,  or  injure  the 
management  and  operation  of  the  railroad,  or  the  business  of 


OF   THE    UXITED    STATES  305 

§  63.  Pinkerton  Men,  Etc — Bytliecoustitutiou 
of  Wyoming  no  armed  police  force  or  detective 


the  company,  is  liable  to  a  fine  of  one  thousand  dollars,  or 
imprisonment  for  two  years.     Me.,  123,  7. 

So,  substantially  in  Connecticut  and  New  Jersey,  the  penal- 
ty is  $100  or  six  months,  and  $500  or  six  months,  respectively 
(Ct.,  1517;  N.  J.,  i6.,  174)  ;  and  whoever,  having  any  man- 
agement of  a  railroad  locomotive  or  car,  while  in  use,  is  guilty 
of  gross  negligence  or  neglect,  or  maliciously  stops  or  de- 
lays the  same,  or  abstracts  therefrom  the  tools  or  appliances, 
may  be  punished  by  fine  and  imprisonment  for  three  years 
(Me.,  123,  8). 

Whoever,  alone  or  in  combination,  does,  or  procures  to  be 
done,  any  act,  in  contemplation  or  furtherance  of  a  dispute 
between  a  railroad,  gas,  or  telegraph  company  and  its  em- 
ployees, wrongfully  and  without  legal  authority,  uses  violence 
toward,  or  intimidates  any  person  with  intent  thereby  to  com- 
pel such  person  to  do,  or  abstain  from  doing,  any  lawful  act, 
or  who,  on  the  premises  of  the  corporation,  by  bribery  or  in 
any  manner  induces,  or  tries  to  induce,  such  person  to  leave 
the  employment  with  intent  thereby  to  further  the  objects  of 
such  combination,  or  in  any  way  interferes  with  such  person 
while  in  the  performance  of  his  duty,  or  threatens,  or  per- 
sistently follows  such  person  in  a  disorderly  manner,  or  in- 
jures, or  threatens  to  injure  his  property,  with  either  of  said 
intents,  is  punishable  by  fine  of  three  hundred  dollars,  or  im- 
prisonment for  three  months.     Me.,  123,  9. 

Any  employee  of  a  railroad  who,  in  furtherance  of  the  in- 
terests of  either  party  to  a  dispute  between  another  railroad 
and  its  employees,  refuses  to  aid  in  moving  the  cars  of  such 
other  railroad  or  trains,  in  whole  or  in  part  made  up  of  such 
cars,  over  the  tracks  of  the  corporation  employing  him  ;  or 
refuses  to  aid  in  loading  or  discharging  such  cars,  is  punished 
by  imprisonment  for  one  year,  or  fine  of  five  hundred  dollars. 
Me.,  123,  10. 

20 


nOO         HANDP.OOK    TO    TIIK    LABOR    LAW 

agency,  armed  body  or  unarmed  body  of  men, 
shall   ever   be  brought   into  this  state  for  the 

And  in  New  Jersey,  if  any  person  in  aid  or  furtherance  of 
the  oi)jects  of  any  strike  ohstruct  any  railroad  track,  or  in- 
jure or  destroy  rolling  stock,  or  other  property  of  the  rail- 
road, or  take  possession  of,  or  remove  it,  or  prevent  or 
attempt  to  prevent  the  use  thereof  hy  the  company  or  its 
employees,  or  by  offer  of  recompense  induce  any  employee 
to  leave  the  service  of  the  railroad  while  in  transit,  such  per- 
son is  guilty  of  a  misdemeanor,  and  punishable  by  fine  of 
five  hundred  dollars  and  imprisonment  for  one  year.  N.  J. 
Rev.,  1877,  page  946,  s.  176. 

And  in  Pennsylvania,  Delaware,  Illinois,  and  Kansas  : 
If  any  engineer  or  railroad  emploj-ee  engaged  in  a  strike, 
or  with  a  view  to  incite  others  to  such  strike,  or  in  further- 
ance of  any  combination  or  preconcerted  arrangement  with 
any  other  person  to  bring  about  a  strike,  abandons  the  engine 
in  his  charge  attached  to  either  a  passenger  or  freight  train, 
at  any  other  place  than  its  destination,  or  refuses  or  neglects 
to  proceed  to  its  destination  with  the  train,  he  is  guilty  of  a 
misdemeanor — penalty  five  hundred  dollars  or  six  months  (Pa. 
Dig.,  p.  533,  §  35;  Del.,  Vol.  15,  481,  1)  ;  one  hundred  dol- 
lars or  ninety  days  (111.,  114,  108  ;  Kan.,  2480). 

So,  if  such  engineer  or  employee,  for  the  purpose  of 
furthering  the  object  of,  or  lending  aid  to,  any  strike  organ- 
ized or  attempted  on  any  other  road,  refuses  or  neglects  to 
remove  cars,  etc.,  of  such  road,  or  interferes  with,  molests, 
or  obstructs  any  engineer  or  employee  in  the  discharge  of 
his  duty,  or  obstructs  any  track,  or  injures  or  destroys  roll- 
ing stock,  or  other  property  of  a  railroad,  or  takes  possession 
of  or  removes  such  property,  or  prevents  or  attempts  to  pre- 
vent its  use  by  the  railway.  Del.,  i6.,  2-4  ;  Pa.  Dig.,  p.  533, 
§§  358-360  ;  Del.,  Vol.  15,  481,  2  and  5. 

In  Illinois,  Michigan,  and  Kansas,  if  any  person  or  per- 
sons shall  wilfully  and  maliciously,  by  any  act,  or  by  means 
of  intimidation,  impede  or  obstruct,   except  by  due  process 


OF   THE    UNITED    STATES  307 

suppression  of  domestic  violence,  except  upon 
the  application  of  the  legislature,  or  executive 

of  law,  the  regular  operation  and  conduct  of  the  business  of 
any  railroad  company,  or  other  corporation^  firm^  or  individ- 
ual in  this  State,  or  of  the  regular  running  of  any  locomotive 
engine,  freight  or  passenger  train  of  any  such  company,  or 
the  tabor  arid  business  of  any  such  corporation,  firm,  or  in- 
dividual, he  or  they  shall,  on  conviction  thereof,  be  punished 
by  a  fine  of  not  less  than  twenty  dollars,  nor  less  (more)  than 
two  hundred  dollars,  and  confined  in  the  county  jail  not  more 
(less)  than  twenty  days,  nor  more  than  ninety  days,  etc.  111., 
114,  109  ;  Kan.,  2481  ;  Mich.,  9274. 

If  two  or  more  persons  shall  wilfully  and  maliciously  com- 
bine, or  conspire  together  to  obstruct,  or  impede  by  any  act, 
or  by  means  of  intimidation,  the  regular  operation  and  con- 
duct of  the  business  of  any  railroad  company  or  any  other 
corporation,  firm,  or  individual  in  this  State,  or  to  impede, 
hinder,  or  obstruct,  except  by  due  process  of  law,  the  regular 
running  of  any  locomotive  engine,  freight  or  passenger  train, 
on  any  railroad,  or  the  labor,  or  business  of  any  such  corpora- 
tion, firm,  or  individual,  such  person  shall,  on  conviction 
thereof,  be  punished  by  fine  not  less  than  twenty  dollars,  nor 
more  than  two  hundred  dollars,  and  confined  in  the  county 
jail  not  less  than  twenty  days,  nor  more  than  ninety  days,  etc. 
(111.,  114,  110  ;  Kan.,  2482);  Mich.,  927.'). 

This  act  shall  not  be  construed  to  apply  to  cases  of  persons 
voluntarily  quitting  the  employment  of  any  railroad  company, 
or  such  other  corporation,  firm,  or  individual,  whether  by 
concert  of  action  or  otherwise,  except  as  is  above  provided. 
111.,  114,  111  ;  Mich.,  927t)  ;  Kan.,  248.5. 

In  Wisconsin,  any  per.-ion  who  shall  individually,  or  in  as- 
sociation with  others,  wilfully  injure  or  remove  any  part  of  a 
railroad  car,  locomotive,  or  of  any  stationary  engine,  or  other 
implement  or  machinery,  for  the  purpose  of  destroying  it,  or 
preventing  its  useful  operation,  or  who  shall  in  any  other  way 
interfere  with  the  running   or  operation   of  any  locomotive 


308         TIAXDBOOK    TO    THE    LABOR    LAW 

when  the  legiskituie  cannot  be  convened.'  It 
may  be  queried  it"  this  provision  is  consistent 
"vvith  the  national  constitution.  In  Missouri, 
also,  there  is  a  new  statute  on  the  subject ;  and 
it  is  "  unlawful  for  any  person  or  persons,  com- 
pany, association,  or  corporation  to  bring  or  im- 
port into  this  state  any  person  or  persons,  or 
association  of  persons,  for  the  purpose  of  dis- 
charging the  duties  devolving  upon  the  police 

or  machinery,  shall  be  punished  by  fine  up  to  one  thousand 
dollars,  or  imprisonment  for  two  jears,  or  both.  Wis.,  1887, 
427,  2. 

In  Texas  any  person  or  persons  who  shall,  by  force, 
threats,  or  intimidation  of  any  kind  whatever,  against  any 
railroad  engineer  or  engineers,  or  any  conductor,  brakeman, 
or  other  oflScer  or  employee  employed  or  engaged  in  run- 
ning any  passenger  train,  freight  train,  or  construction  train, 
running  upon  any  railroad  in  this  State,  prevent  the  moving 
or  running  of  said  passenger,  freight,  or  construction  train, 
shall  be  deemed  guilty  of  an  offence,  etc.     Tex.,  1887,  92,  1. 

In  Louisiana,  anj'  person  who  may  ship  upon  a  steamboat 
in  the  customary  manner,  to  do  service  on  said  boat,  either  by 
the  month  or  voyage,  in  the  capacity  of  an  officer,  engineer, 
pilot,  clerk,  mate,  carpenter,  cook,  steward,  cabin-boy,  watch- 
man, fireman,  deck-hand,  or  laborer,  who  may  abandon  the 
boat  before  having  fulfilled  liis  engagements,  or  who  may  re- 
fuse to  do  his  duty  in  the  capacity  for  which  he  shipped  or 
engaged  to  perform,  before  the  completion  of  the  voyage,  or 
the  term  of  his  engagement,  without  lawful  cause,  shall,  be- 
sides forfeiting  all  claims  to  the  wages  due  for  such  service, 
be  liable  to  the  owner  or  owners  of  said  steamer  for  any 
damages  which  they  may  sustain  by  said  abandonment  or  re- 
fusal to  do  duty.     La.  R.  L.,  945. 

'  Wy.  Const.,  Art.  19,  1. 


OF   THE   UNITED   STATES  309 

officers,  sheriffs,  or  constables,  in  the  protection 
or  preservation  of  public  or  private  property. 

"Hereafter  no  sheriff  in  this  state  shall  ap- 
point any  under  sheriff  or  deputy  sheriff,  except 
the  person  so  appointed  shall  be,  at  the  time  of 
his  appointment,  a  hona-fide  resident  of  the  state. 

"  The  mayor,  chief  of  police,  and  members  of 
the  board  of  police  commissioners  of  any  city 
in  this  state  shall  be  governed  by  the  same  re- 
strictions and  subject  to  the  same  penalties  as  a 
sheriff  of  any  county,  under  the  provisions  of 
this  article. 

"  Any  person  or  persons  violating  any  of  these 
provisions  shall  be  punished  by  imprisonment 
in  the  penitentiary  for  not  less  than  two  years 
nor  more  than  five  years ;  and  if  any  company, 
association,  or  corporation  shall  be  guilty  of  vio- 
lating this  article,  said  company,  association,  or 
corporation  shall  be  punished  by  a  fine  of  not 
less  than  one  thousand  dollars."'^ 

»  Mo.,  3772-3776. 


310        HANDBOOK   TO   THE   LABOR    LAW 


CHAPTER  IX 

EQLTTY  PROCESS  AND  INJUNCTIONS  —  THE  ANTI- 
TRUST LAW,  AND  THE  INTERSTATE  COMMERCE 
LAW 

§  64.  Remedies  by  Injunction — AVe  have 
sliowTi  in  Chapter  YIII,  that  a  strike  may  occa- 
sionally be  an  unla^'ful  conspiracy  or  a  criminal 
conspiracy,  while  a  boycott  is  so  generally.  It 
may  be  questioned  Avhether  there  is,  logically, 
any  difference  between  an  unlawful  conspiracy, 
or  one  which  subjects  its  members  to  liability 
to  damages  at  suit  of  persons  actually  injured, 
and  a  criminal  conspiracy.  The  act  of  an  indi- 
vidual to  the  prejudice  of  a  third  person  will  very 
frequently  render  him  liable  to  damages  without 
being  criminal,  as,  for  instance,  in  the  amusing 
case  of  Tarleton  v.  McGawley,"  where  the  master 
of  a  ship  was  held  liable  in  damages  to  the  OAvner 
of  another  ship,  both  being  traders  off  the  coast 

'  Peak  N.  P.  C,  270.  See  §  5  abore.  So  in  the  recent 
case  of  Graham  v.  St.  Charles  Street  Ry.  Co.  and  Newman, 
it  was  held  that  damages  might  be  recovered  of  Newman  per- 
sonally, the  foreman  of  the  Street  Railway  Company,  for 
instructing  his  men  not  to  frequent  the  plaintiff's  store  under 
penalty  of  discharge,  etc.  47  La.  Ann.,  214;  27  L.  R.  A.^ 
416. 


OF   THE    UNITED    STATES  311 

of  Africa,  for  purposely  firing  a  cannon  and  so 
scaring  the  negroes  on  the  beach  that  they  ran 
away  and  did  not  trade  Avith  the  other  vessel. 
Obviously  there  was  nothing  criminal  about  this 
act,  but  it  will  be  remembered  (see  §  55)  that 
a  combination  of  many  for  the  specific  purpose 
of  injuring  a  third  person  is  a  criminal  conspir- 
acy, the  reason  of  it  being  that  the  confedera- 
tion of  many  becomes  so  dangerous  to  the  state 
that  it  is  a  public  wrong,  i.e.,  a  crime.  Never- 
theless, there  is  no  doubt  the  courts  have  been 
more  strict  in  applying  the  doctrines  of  conspir- 
acy upon  an  indictment  than  in  a  civil  suit 
brought  by  a  person  injured  to  recover  damages. 
Logically,  every  combination  which  is  so  unlaw- 
ful as  to  make  the  parties  liable  for  damages 
for  the  combination  itself,  and  not  for  the  acts 
they  commit,  is  necessarily  a  criminal  conspir- 
acy ;  but,  practically,  the  courts,  and  particu- 
larly the  juries,  will  require  much  more  definite 
evidence  of  an  unlaAvful  pui-pose  in  the  first 
place,  and  of  acts  more  seriously  unlawful  in  the 
second  place,  if  the  parties  to  it  are  brought 
before  the  court  for  punishment  as  crimi- 
nals. 

In  the  ordinary  cases,  therefore,  it  is  more 
difficult  for  persons  injured  by  a  boycott,  black- 
list, or  conspiracy,  whether  employers  or  em- 
ployees, to  get  redress  in  the  criminal  courts, 
while  it  very   frequently  happens  that  the  de- 


81:?         HANDBOOK    TO    TIIK    LAliOi:    J.AW 

feudants  are  not  responsible  for  any  damages, 
as  a  judgment  conld  not  be  collected  against 
them.  Moreover,  in  nearly  all  these  cases,  an 
action  for  damages  against  any  one  or  more  per- 
sons would  be  wholly  inadequate,  partly  because 
the  fraction  of  the  wrong  done  by  any  particu- 
lar person  would  be  trifling,  but  more  because 
the  action  of  trade  or  industrial  conspiracies, 
disorderly  strikes,  and  boycotts  is  to  work  a 
damage  which  is  irreparable  after  it  has  hap- 
pened, besides  being  threatened  or  committed 
by  such  an  indefinite  number  of  persons  that 
remedies  by  suits  at  law  are  quite  useless. 

This  brings  us  to  the  third  remedy  against 
unlawful  combinations,  which  has  become  hj 
far  the  most  important  of  all,  the  most  efi"ective 
in  execution,  and  the  most  liable  to  abuse.  This 
is  the  remedy  given  in  courts  of  equity  by  in- 
junction ;  for  under  the  procedure  of  equity 
courts  a  person  apprehending  injury  by  such 
combinations  may  bring  a  bill  against  one  or 
more  persons,  and  obtain  at  once,  without  wait- 
ing for  any  hearing  or  answer  by  the  defendant, 
a  preliminary  injunction,  addressed  against  not 
only  the  defendants  named,'  but  all  their  agents, 
servants,  and  subordinates  named  or  unnamed  ; 
and,  finally,  against  any  person  whatever 
throughout  the  Morld  who  may  have  knowledge 

'  Ex  parte  Lennon,  64  F.  R.,  320. 


OF   THE    UNITED    STATP:S  313 

that  such  injunction  has  been  granted ;  so  that 
by  widely  publishing  such  injunction  orders, 
posting  them  on  fences,  in  workrooms  and  fac- 
tories, or  on  railroad  cars,  it  becomes  not  a  dif- 
ficult matter  to  render  all  the  world  liable  to  the 
summary  jurisdiction  of  contempt  if  they  inter- 
fere Avith  the  property  or  rights  protected  by  tlie 
injmiction.  Such  a  preliminary  injunction  if 
not  vacated  may  be  confirmed  after  hearing  on 
the  merits,  and  made  permanent,  with  the  same 
permanent  results.  Moreover,  the  process  which 
courts  of  equity  have  of  enforcing  their  judg- 
ments or  decrees  is  far  more  effective  than  any 
known  to  the  common-law  courts.  The  common- 
law  courts  can  only  mulct  a  man  in  damages, 
and,  if  he  refuse  to  pay,  may,  under  certain 
strict  limitations,  and  with  very  great  trouble  and 
delay,  occasionally,  in  rare  instances,  imprison 
a  man  for  the  debt ;  but  when  a  decree  is  ren- 
dered in  a  court  of  equity,  any  party  to  the  suit, 
or  when  an  injunction  is  granted,  any  party  who 
may  have  notice  of  the  injunction,  is  liable  to 
contempt  process,  if  he  do  or  suffer  to  be  done 
any  act  against  the  decree  or  the  injunction 
only ;  and  contempt  process  is  a  very  effective 
one,  consisting  as  it  does  in  the  immediate  and 
summary  punishment  of  the  offender  by  fine,  or 
more  usually  by  imprisonment  until  he  obey  the 
orders  of  the  court.  It  is  unquestioned  law  that 
the  offender  in  cases  of  contempt  is  entitled  to 


314         IIANDHOOK    TO    THE    LABOIl    LAAV 

no  jury  trial.'  It  is  also  law  generally  unques- 
tioned that  from  an  order  in  contempt  there  is 
no  appeal  from  the  court  issuing  it  to  an}-  higher 
court,'  although  in  a  few  jurisdictions  it  has  been 
held  that  there  is  an  appeal  in  cases  where  the  in- 
junction was  issued  in  reality  to  protect  private 
interests  and  not  the  public  ;  ^  but  even  this  ap- 
peal only  goes  so  far  as  to  give  the  appeal  court 
the  right  to  investigate  and  see  whether  the  court 
below  had  jurisdiction  of  the  subject  matter.® 
The  moment  this  is  found  to  be  the  case,  the 
appeal  court  even  cannot  go  into  the  rights  and 
wrongs  of  the  injunction  or  the  reasonableness  of 
the  punishment.  In  Montana  and  one  or  two 
other  states,  by  statute,  the  person  in  contempt 
process  may  take  the  matter  up  by  writ  of  cer- 
tiorari,^ but  it  is  doubtful  whether  this  right 
goes  further  than  to  test  the  jurisdiction  of  the 
court;  and  in  the  same  way  perhaps  the  person 
committed  for  contempt  may  have  a  right  of 
habeas  corpus,  but  with  the  same  result,  as  was 
decided  recently  hy  the  United  States  Supreme 
Court   in   the  Debs  case,  where,   although  the 


3  Bellows  V.  Bellows,  58  X.  H.,  60:  Garrigus  v.  State,  93 
Ind.,  239;  McDonnell  v.  Henderson,  38  N.  W.,  562;  Eillen- 
becker  v.  Plymouth  Co.,  134  U.  S.,  31. 

*  Campbell  v.  Shotwell,  8  Wkly.  L.  B.,  433;  Williamstown 
V.  Darge,  71  Wis.,  643. 

'  Dodd  V.  Una,  13  Stew.  (N.  J.),  672. 

«  Re  Wood,  82  Mich.,  75. 

'  State  z).  4th  Jud.  Dist.  Court,  34  Pac  R.,  39. 


OF   THE   UNITED   STATES  315 

court  in  their  opinion  intentionally  took  a  some- 
Tvhat  broader  ground,  the  real  reason  of  their 
decision  was  but  the  fact  that  the  Federal  Circuit 
Court,  which  issued  the  original  injunction,  had 
jurisdiction  and  authority  to  do  so  under  ordi- 
nary equity  doctrines. 

It  is  frequently  said  that  this  use  of  the  in- 
junction to  prevent  conspiracies  or  combinations 
of  organized  labor,  rights,  or  injuries  to  property 
or  personal  rights  by  masses  of  men  is  of  modern 
application,  and  it  is  traced  back  to  the  leading 
case  of  Springhead  Spinning  Co.  v.  Riley ,^  which 
was  decided  as  late  as  1868.  This  is  not,  how- 
ever, a  new  doctrine,  but  rather  the  revival  of  a 
very  old  one.  In  the  fourteenth  century,  at  the 
time  of  the  civil  wars  and  great  disorders  in 
England,  Edward  III.  found  it  necessary  to 
adopt  some  more  effectual  measures  of  police 
than  those  which  already  existed.  For  this  pur- 
pose justices  of  the  peace  were  first  instituted 
throughout  the  country  with  power  to  take  se- 
curity for  the  peace  and  bind  over  parties  who 
threatened  offence.  Fifty  years  later,  in  the 
reign  of  Richard  II.,  it  was  found  necessary  to 
provide  further  measures  for  repressing  forcible 
entries  on  lands,  the  lawless  spirit  of  the  times 
making  it  necessary,  and  thereupon  the  king's 
chancellor  began  to  exercise  his   authority   in 

«L.  R.  6  Eq.,  551. 


31C         HANDBOOK   TO   THE   LABOR   LAW 

repressing  disorderly  obstructions  to  the  course 
of  law,  and  in  affording  civil  remedy  in  cases  of 
outrage,  "which  for  any  reason  could  not  be  effect- 
ually redressed  through  the  ordinary  tribunals. 
The  Court  of  Star  Chamber  had  the  same  juris- 
diction, and  Coke  particularly  mentions  as  part 
of  it  the  suppression  of  those  who  spread  false 
and  dangerous  rumors  of  frauds,  deceits,  con- 
spiracies, and  of  great  and  horrible  riots,  routs 
and  unlawful  assemblies,  leaving  ordinary  offences 
to  the  couiis  of  law,  and  speaks  of  it  complain- 
ingly  as  "  a  court  of  criminal  equity."' 

All  equity  jurisdiction  was  adopted  and  rec- 
ognized with  great  reluctance  in  the  original 
states  of  this  country.  In  Massachusetts  it  took 
a  succession  of  statutes,  after  repeated  opposi- 
tion, to  establish  the  present  system  of  equity 
jurisdiction  ;  and  there  are  many  states  in  which 
the  equity  jurisdiction  is  not  yet  as  full  as  that 
of  the  English  Court  of  Chancery,  although 
in  the  federal  courts  it  is  made  expressly  the 
same.  Nevertheless,  in  view  of  the  great  re- 
cent criticism  of  the  use  of  this  jurisdiction 
by  federal  courts  in  the  issue  of  injunctions  in 
cases  of  labor  troubles,  it  is  a  striking  fact  that 
the  very  first  case  decided  by  the  United  States 

'  Spence,  Eq.  Jurisdiction,  pp.  342-344 ;  Charles  Claflin 
Allen,  article  on  "  Injunction  and  Organized  Labor,"  17  Amer. 
Bar  Assn.  Rep.,  299;  Pol.  Sci.  Quarterly,  Vol.  10,  No.  2: 
"The  Modern  Use  of  Injunctions,"  by  F.  J.  Stimson,  p.  189. 


OF  THE   UNITED   STATES  317 

Supreme  Court  was  an  equity  case  in  which 
an  injunction  was  granted."*  The  case  of  the- 
Springhead  Spinning  Co.,  mentioned  above,  was, 
perhaps,  the  first  case  of  the  use  of  the  injunction 
in  a  modern  labor  dispute.  In  that  case  the 
defendants  Avere  officers  of  a  trades-union,  and 
they  gave  notice  to  workmen,  by  placards,  etc., 
that  they  were  not  to  take  work  with  the  plain- 
tiff, and  the  bill  alleged  that  this  intimidated  the 
workmen  and  injured  the  value  of  the  plaintiffs 
property.  On  demurrer  it  was  held  that  al- 
though the  acts  of  the  defendant  as  alleged 
amounted  to  a  crime  (under  the  then  existing 
statute),  the  court  would  interfere  by  injvinction 
to  restrain  such  acts,  inasmuch  as  they  Avere  also 
an  infringement  of  property  rights.  Malins, 
V.-C,  reaffirmed  the  doctrine  that  a  court  of 
chancery  would  not  enjoin  the  commission  of 
crimes  as  such,  and  that  the  function  of  equity 
is  to  protect  the  civil  right  of  property ;  and 
quoted  the  case  of  the  Emperor  of  Austria  i\ 
Kossuth,"  in  which  case  the  injunction  against 
the  manufacture  of  counterfeit  Austrian  money 
by  Kossuth  in  England  was  granted  on  the 
ground  that  it  was  an  invasion  of  property  rights 
of  the  Emperor  of  Austria,  but  expressly  not 
granted  in  so  far  as  such  counterfeiting  consti- 


"  Georgia  «.  Brailsford,  2  Dallas,  402. 
"  3  De  G.  F.  &  J.,  pp.  232-258. 


318         HANDBOOK   TO   THE   LABOR   LAW 

tuted  a  crime  in  the  English  law ;  and  also 
quoted  Lord  Eldon,"  "A  court  of  equity  has 
no  criminal  jurisdiction,  but  it  lends  its  assist- 
ance to  a  man  who  has,  in  view  of  the  law,  a  right 
of  property,  and  who  makes  out  that  an  action  at 
law  will  not  be  a  sufficient  remedy  and  protection 
against  intruding  upon  his  possession.""  So 
Vice-Chancellor  Malins  concluded  that  while  the 
"jurisdiction  of  a  court  of  equity  is  to  protect 
property,  it  will  interfere  by  injunction  to  stay 
any  proceedings,  whether  connected  with  crime 
or  not,  which  go  to  the  immediate  or  tend  to  the 
ultimate  destmction  of  property,  or  make  it  less 
valuable  or  comfortable  for  use  or  occupation." 
There  were  in  England  comparatively  few  other 


'^Macauley  f.  Shackell,  1  Bligh,  X.  S.,  96,  127. 

'•^  In  Sparhawk  v.  Union  Passenger  R.R.,  Pa.  St.  Rep., 
the  bill  was  brought  by  citizens  to  prevent  defendant  from 
running  its  cars  on  Sunday  in  violation  of  a  penal  statute ; 
and  the  court  held  that  it  was  incumbent  upon  plaintiffs  to 
show  that  the  illegal  acts  of  defendants  interfered  injuriously 
with  their  property  rights.  A  court  of  equity  "  will  not  en- 
force a  penalty  or  enjoin  against  the  commission  of  a  crime 
when  it  is  merely  a  crime,  and  not  also  an  injury  to  private 
rights  of  property.  When  an  act  is  both  a  public  offence  and 
a  private  wrong  it  may  be  enjoined  against,  but  not  otherwise. 
'If  an  act  be  illegal.'  said  Vice-Chancellor  Kindesley,  in 
Solteau  V.  De  Held,  2  Sim  &  Stew,  153,  '  I  am  not  to  grant 
an  injunction  to  restrain  an  illegal  act  merely  because  it  is 
illegal.  I  cannot  grant  an  injunction  to  restrain  a  man  from 
smuggling,  which  is  an  illegal  act,'  nor  could  he  for  any 
merely  criminal  or  penal  offence." 


OF   THE    UNITED    STATES  319 

cases  of  injunctions  sought  in  labor  disputes 
until  recent  years,  the  remedy  followed  being 
commonly  that  of  indictment  of  the  persons 
offending.  But  the  case  of  the  Mogul  Steamship 
Co.,  discussed  in  §  57,  while  refusing  to  consider 
the  combination  an  unlawful  boycott,  recognized 
that  an  injunction  Avould  have  been  a  proper 
remedy  had  it  been  so.  And  in  the  United 
States  the  peculiar  remedy  of  process  for  con- 
tempt in  labor  disputes  was  first  used  in  cases  of 
actions  against  receivers,  which  will  be  discussed 
in  the  next  section. 

In  Walker  v.  Cronin,  discussed  in  §  58  above, 
and  decided  in  1871,  although  the  remedy  sought 
was  an  action  for  tort,  it  appears  probable  that 
an  injunction  would  have  been  awarded  had  it 
been  applied  for;  and  the  same  may  be  said  of 
Old  Dominion  .Steamship  Co.  v.  McKenna,  de- 
cided in  1887. 

But  apparently  the  first  American  case  where 
an  injunction  was  granted  to  prevent  anything 
resembling  a  boycott  is  the  Massachusetts  case 
of  Sherry  v.  Perkins,  decided  in  1888,  and  the 
Pennsylvania  case  of  Brace  v.  Evans,  decided 
independently  in  the  same  month,  both  fully  dis- 
cussed in  §§  58,  60,  above.  In  both  these  cases 
an  injunction  was  granted.  Other  important 
cases  of  injunctions  rapidly  followed,  the  first 
in  a  federal  court  being  that  of  Casey  v.  Cincin- 
nati Typographical  Union,  where  an  injunction 


3t?0         HAXDHOOK     TO    TIIIC    LAHOR   LAW 

was  granted  upon  a  state  of  facts  resembling 
that  of  the  Springhead  case.'^  Several  other 
cases,  which  are  fully  discussed  in  §§  58,  65,  66, 
rapidly  followed.'"' 

In  the  Toledo  Railway  case  a  bill  in  equity 
was  brought  by  the  plaintiff  railroad  against  the 
Pennsj'lvania  Railroad  and  others  to  enjoin  the 
receivers  from  refusing  to  extend  to  complainant 
the  same  equal  facilities  as  to  others  for  the  ex- 
change of  interstate  traffic.  The  injunction  was 
issued,  served  upon  the  Lake  Shore  Railroad, 
and  brought  to  the  notice  of  its  employees  by 
publication,  and  certain  of  its  employees  were 
attached  for  contempt  for  violating  the  injunc- 
tion, among  them  one  Lennou,  an  engineer,  who 
was  on  his  run  from  Detroit  to  Air  Line  Jrmc- 
tion,  where  he  Avas  ordered  to  take  an  empty  car 
from  the  Ann  Arbor  "  Y."  This  was  one  of  the 
boycotted  cars,  and  he  refused  to  switch  the  car 
into  the  train,,  and  held  it  there  for  five  hours, 
until  he  received  a  message  from  the  chairman 
of  the  strikers  which  read,  "  You  can  come  along 
and  handle  Ann  Arbor  cars."  Although  he  said 
in  the  morning  "  I  quit,"  he  brought  his  train 
to  its  destination,  which  the  court  held  to  be 

■M5  F.  R.,  135.     See  §  58. 

'^Blindell  r.  Hagan,  5-t  F.  R.,  40  (see  §  66);  Toledo  Ry. 
Co.  V.  Penn.  Ry.  Co.,  54  F.  R.,  746;  United  States  v.  Work- 
ingmen's  Amalgamated  Council  of  Xew  Orlean,s,  54  F.  R., 
994. 


OF   THE   UNITED   STATES  321 

satisfactory  evidence  that  lie  did  not  quit  in 
good  faith,  but  intended  to  continue  in  the 
company's  service,  and  that  his  conduct  was  a 
trick  to  avoid  obeying  the  order  of  the  court. 
Leiinon  was  accordingly  fined  fifty  dollars.  (For 
a  fuller  report  of  this  case  see  also  §  66  below.) 

In  the  United  States  v.  Workingmen's  Coun- 
cil of  New  Orleans  (see  §  58)  it  appeared  that  a 
difference  had  sprung  up  between  the  ware- 
housemen and  their  employees,  and  the  prin- 
cipal draymen  and  their  subordinates,  and  with 
a  view  of  compelling  an  acquiescence  on  the 
part  of  the  employers,  it  was  brought  about  by 
the  unemployed  that  all  union  men  should  dis- 
continue business,  with  the  usual  consequence  of 
disorder  and  cessation  of  business.  The  case 
was  based  on  the  Interstate  Commerce  Law, 
but  an  injunction  was  granted,  the  terms  of 
which  do  not  appear  in  the  report,  except  that 
it  restrained  the  defendants  from  interfering 
with  interstate  commerce. 

So,  in  Pettibone  v.  United  States,''  an  injunc- 
tion was  granted  against  defendants  for  interfer- 
ing with  a  mining  company,  or  by  force  or 
threats,  or  otherwise  making  an  attempt  to  in- 
timidate an  employee  or  any  other  person  from 
taking  service  with  the  companj' .  Shortly  be- 
fore this  a  similar  case  had  been  decided — that 


'«  148  U.  S.,  197.     See  §g  55,  58  above. 
21 


822        HANDBOOK    TO   THE   LABOR   LAW 

of  Coenr  d'Alene  Mining  Co.  v.  Miners'  Union 
of  "NVardner."  In  this  case  it  appeared  that  the 
defendants,  members  of  miners'  unions,  com- 
bined for  the  purpose  of  not  only  controlling 
and  dictating  the  "wages  to  be  paid  them,  but 
also  to  prevent  sill  persons  not  members  of  such 
unions  from  working  for  the  complainant.  That 
they  adopted  a  systematic  course  of  intimida- 
tion against  the  complainant  and  any  miners 
desiring  to  work  for  it  who  were  not  members 
of  such  unions ;  that  they  notified  the  complain- 
ant that  it  must  employ  none  but  those  who 
belonged  to  such  unions,  and  that  they  entered 
complainant's  mines  and  by  force  removed  there- 
from its  employees,  and  by  reason  of  the  prem- 
ises the  complainant  was  compelled  to  cease 
work  ;  that  one  hundred  men,  headed  by  defend- 
ant, John  Tobin,  went  to  complainant's  mine 
and  forcibly  ejected  certain  persons  from  work, 
and  then  took  them  to  the  Union  Hall  at  Burke, 
where  it  was  demanded  they  should  join  the 
union  or  leave  the  camp  ;  and  upon  their  refusal 
to  do  so  it  was  ordered  by  the  meeting  that  they 
be  marched  out  of  the  state,  whereupon  they 
were  escorted  in  the  direction  of  Thompson 
Falls,  Montana,  by  two  hundred  men,  who  beat 
oil-cans  in  imitation  of  drums ;  that  they  were 
called  "  scabs,"  and   coarse   indignities  heaped 

"  51  F.  R.,  260.     See  also  in  g  65. 


OF  THE   UNITED   STATES  328 

upon  them  ;  they  were  denied  the  privilege  of 
purchasing  food,  and  for  two  days  were  with- 
out any  food  and  exposed  to  the  inclemency 
of  the  weather  in  crossing  a  snowy  range  of 
mountains.  (It  does  not  appear  in  the  report, 
but  this  was  in  fact  followed  by  the  massacre  of 
many  of  these  non-union  miners,  well  described 
by  Mary  Hallock  Foote  in  her  novel.)  The 
court  fully  considered  the  argument  that  equity 
would  not  interfere  to  prevent  the  commission 
of  a  crime,  and  admitted  that  the  court  would 
not  interfere  merely  to  prevent  a  libel ;  but 
"  when  the  attempt  to  injure  consists  of  acts  or 
words  which  will  operate  to  intimidate  and  pre- 
vent the  customers  of  a  party  from  dealing  with 
him,  or  laborers  from  working  for  him,  the 
courts  have,  with  nearly  equal  unanimity,  inter- 
posed by  injunction."  It  appeared  that  the  in- 
junction was  served  upon  two  proprietors  of 
newspapers,  and,  while  upholding  the  freedom 
of  the  press,  the  court  held  that  if  they  were 
engaged  in  doing  the  acts  complained  of,  or 
threatened  to  commit  them  by  the  use  of  their 
columns  to  incite  the  lawless  or  thoughtless  to 
acts  of  violence  or  crime,  the  injunction  against 
them  also  was  well  granted.'* 


'*  A  New  York  court  has  held  otherwise  on  similar  facts  : 
Rogers  v.  Evarts,  17  N.  Y.  Sup.,  266.  There  is,  of  course, 
no  doubt  that  fair  comment,  even  sympathetic  editorials,  is 


:>2-4         HANDBOOK    TO   THE    LABOi:    LAW 

The  Northern  Pacific  Raihoad  Company  cases 
were  fully  discussed  in  §^  55  and  58  above.'' 
The  petition  was  brought  by  the  receiver  of  a  rail- 
road, and  the  court  granted  an  injunction  against 
employees  and  others  from  intimidating  or  per- 
suading other  employees  to  strike,  or  from  com- 
bining to  strike  themselves,  in  such  a  manner  as 
to  cripple  the  railroad.  This  injunction  was 
afterward  modified  on  appeal,  so  that  the  in- 
junction against  persuading  others,  and  the  in- 
junction against  so  leaving  employment  them- 
selves as  to  cripple  the  railroad,  were  omitted. 

In  Lake  Erie  and  Western  Railroad  Co.  v. 
Bailey,^  a  railway  not  in  the  hands  of  a  receiver 
filed  its  bill  against  defendant  employees  and 
members  of  unions  to  restrain  them  from  ob- 
structing and  interfering  with  the  movements  of 
its  trains,  and  the  injunction  was  granted  against 
all  force  and  intimidation,  reserving  to  the  labor- 
ers only  the  right  to  quit  work  themselves,  or  to 
organize  for  the  purpose  of  quitting  work  if  they 
so  chose. 

In  1894  the  case  of  Lennon,  mentioned  above, 
came  before  the  Circuit  Court  of  Appeals  on  his 
application   for    a   liahcas   corpus.      The    court 

permissible  to  newspapers,  provided  they  do  not  actually 
counsel  a  boycott  or  illegal  acts  of  intimidation,  etc. 

"  Farmers'  Loan  &  Trust  Co.  v.  Northern  Pacific  R.  R. 
Co.,  60  F.  R.,  803;  Arthur  v.  Oakes,  63  F.  R.,  310. 

'"  61  F.  R.,  494. 


OF  THE    UNITED   STATES  325 

found  tliat  habeas  corpus  does  not  perform  the 
office  of  a  writ  of  error  or  an  appeal  in  respect 
to  the  proceedings  complained  of,  and  that  noth- 
ing is  open  to  the  court  considering  it  but  the 
jurisdiction  of  the  court  below,  whether  it  had 
proper  jurisdiction  of  the  subject-matter  and  of 
the  person.  They  also  held,  specifically,  that  it 
is  not  necessary,  in  order  that  a  person  should  be 
bound  to  obey  an  injunction  restraining  a  party 
to  a  suit,  his  agents,  etc.,  from  doing  any  act, 
that  such  person  should  himself  be  a  party  to 
the  suit,  or  should  be  served  with  a  copy  of  the 
injunction  order,  but  that  it  is  sufficient,  if  being 
such  agent,  he  has  actual  notice  that  the  order  is 
being  made."^^ 

The  same  thing  has  recently  been  held  by  the 
Supreme  Court  of  the  United  States  on  appeal 
from  the  Debs  case,"  decided  in  the  Circuit  Court 
in  December,  1894,  and  this  case  is  the  leading 
recent  authority  for  the  old  position,  that  though 
the  same  act  constitute  a  contempt  and  a  crime, 
the  contempt  may  be  tried  and  punished  by  a 
court  of  equity  without  regard  to  the  criminal 
remedy ;  and  it  has  often  been  held  that  al- 
though an  act  has  been  specially  made  a  crime, 
or  misdemeanor,  or  public  nuisance,  the  fact 
that  it  is  also  an  injury  to  private  rights  or  prop- 


Ex  parte  Lennon,  64  F.  R.,  320. 

U.  S.  V.  Debs,  64  F.  R.,  724;   \->S  U.  S.,  564. 


326        HANDBOOK   TO   THE   LABOR   LAW 

erty,  or  a  private  uuisance,  will  enable  the  per- 
son iujured  to  bring  a  bill  against  the  parties 
committing  it,  or  threatening  to  commit  it,  for  an 
injunction. 

§  65.  Strikes  against  Receivers. — Under  the 
established  doctrine  of  courts  of  equity  a  receiv- 
er appointed  to  take  charge  of  property  or  pre- 
vent waste  is  the  officer  of  the  court.  It  follows 
that  any  interference  with  his  possession  is  an 
interference  with  the  possession  of  the  court, 
and  hence  a  contempt ;  and  it  will  be  a  con- 
tempt independent  of  any  injunction  or  any  ex- 
press words  of  the  order  appointing  the  receiver  ; 
although  it  is  veiy  common,  particularly  in 
modem  times,  to  couple  with  the  order  appoint- 
ing a  receiver  an  injunction  against  all  persons 
(or  at  least  against  all  parties  to  the  suit,  their 
agents  and  privies)  from  interfering  with  the 
property  in  suit  or  with  the  possession  of  the 
receiver. 

This  doctrine  has  become  very  important  in~ 
recent  years,  owing  to  the  great  extension  of  re- 
ceivership jurisdiction  by  courts  of  equity  over 
insolvent  corporations,  particularly  railroads ; 
and  as  nearly  all  railroads  are  situated  in  more 
than  one  state  (or  at  least  present  in  cases  of 
insolvency  an  opportunity  for  invoking  the  juris- 
diction of  the  federal  courts  owing  to  the  differ- 
ent citizenship  of  the  parties),  the  greatest  ex- 


OF   THE    UNITED    STATES  327 

tension  of  the  control  of  railroads  by  courts  of 
equity  has  occurred  in  the  federal  courts.  In 
recent  years  more  than  one-third  of  the  entire 
railroad  mileage  of  the  United  States  has  been 
in  the  hands  of  receivers,  nearly  always  ap- 
pointed by  the  federal  courts — that  is,  they  have 
been  run  by  receivers  as  officers  of  the  courts — 
and  any  interference  with  their  possession,  or 
even  with  the  traffic  and  management  of  the 
railway  has  rendered  the  guilty  parties  liable  to 
the  injunctions  or  contempt  process  of  the  court 
appointing  the  receiver.  This,  perhaps,  has 
been  the  principal  cause  of  what  has  become  to 
be  known  as  government  by  injunction  ;  that  is, 
the  management  of  the  railway  interests  of  the 
country  by  officers  of  the  federal  courts  under 
the  control  of  equity  process  with  its  affirmative 
remedies  before  adverted  to,  which  make  it  pos- 
sible, by  simple  court  order,  to  require  all  rail- 
road employees,  and  even  labor  organizations 
affiliated  with  them,  to  perform  the  duties  of 
their  service  in  full  under  penalty  of  contempt. 

Many  such  cases  have  been  discussed  in  the 
last  section  and  in  §  55,  Strikes,  and  §§  57,  58, 
Boycotts ;  and  it  remains  but  to  mention  a  few 
of  the  decisions  on  simple  cases  of  strikes 
against  receivers  to  show  the  nature  and  extent 
of  the  jurisdiction.  Thus,  in  re  Doolittle  and 
another,  strikers,'  the  Wabash  Railway  being  in 

'  23  F.  R.,  544.     See  also  §  55. 


328         HANDBOOK    TO   THE   LABOK   LAW 

the  hands  of  receivers,  the  United  States  Mar- 
shal reported  to  the  court  that  at  Hannibal,  Mo., 
he  found  the  possession  and  use  of  the  property 
interfered  with  by  bodies  of  men,  who  spiked  and 
blocked  the  tracks,  drew  water  from  the  engines, 
and  incited  the  agents  and  employees  of  the  re- 
ceivers to  quit  work  ;  and  that,  in  particular, 
Doolittle  had  prevented  a  train-master  from  tak- 
ing out  of  a  round-house  a  number  of  engines  in 
the  custody  of  the  receivers,  whereupon  he  had 
caused  him  to  be  arrested,  and  also  arrested  one 
Schanbacher  for  holding  an  engine  upon  and  for 
the  purpose  of  blocking  the  main  track.  As  a 
result  the  movement  of  the  engine  and  about 
one  hundred  freight-cars  was  delayed  some 
hours,  and  the  two  prisoners  were  attached  for 
contempt.  It  appeared  that  the  strikers  were 
engaged  in  a  strike  not  against  the  Wabash,  but 
against  the  Union  Pacific  Railroad,  and  Justice 
Brewer  (now  of  the  Supreme  Court)  ruled  that 
although  the  defendants  did  not  set  out  to  ob- 
struct the  receivers  of  the  Wabash  Railroad, 
yet  they  did  set  out  to  obstruct  some  persons  in 
the  exercise  of  their  legal  rights,  and  intei-fered 
with  other  persons  working,  and  prevented  the 
owners  of  raih'oad  trains  from  moving  them  ;  and 
the  defendants  were  accordingly  sentenced  to 
sixty  days'  imprisonment. 

In  the  same  year  (1885)  four  persons  were  at- 
tached for  interfering  with  the  receivers  in  pos- 


OF  THE   UNITED   STATES  329 

session  of  a  railroad  in  Colorado,  and  three  of 
them  were  sentenced  by  Justice  Brewer  to  im- 
prisonment for  ten  days,  thirty  days,  and  four 
months  respectively.'  The  facts  do  not  clearly 
appear  from  the  report,  but  there  was  a  strike  in 
progress  and  a  large  and  excited  crowd  bent  on 
stopping  the  movement  of  the  trains,  although 
they  did  not  seek  to  destroy  property  ;  but 
they  made  the  demonstrations  with  an  attempt 
to  overawe  the  engineers  and  their  trainmen. 
Murphy,  not  being  a  leader  in  the  disturbance, 
was  sentenced  to  only  ten  days ;  Tyler,  who  had 
talked  more  freely,  to  thirty  days  ;  and  Orr,  who 
was  proved  to  have  made  definite  threats,  to 
four  months. 

The  next  case  was  that  of  the  Wabash  Rail- 
way Co.,^  in  which  it  appeared  that  one  Berry 
sent  letters  to  the  foreman  of  one  of  the  railway 
shops,  dated  "  Office  of  Local  Committee,"  and 
saying  :  "  You  are  requested  to  stay  away  from 
the  shop  until  the  present  difficulty  is  settled. 
Your  compliance  with  this  will  command  the 
protection  of  the  Wabash  employees,  but  in  no 
case  are  you  to  consider  this  an  intimidation. 
C.  M.  Berry,  Chairman."  The  railway  was  in 
the  hands  of  a  receiver,  and  the  object  of  the 
strikers  was  to  resist  a  reduction  of  wages ;  and 


«  U.  S.  V.  Kane,  23  F.  R.,  748.     See  also  in  §  55. 
'24  F.  R..  217. 


330        HANDBOOK    TO   THE   LABOR   LAW 

it  appeared  that  in  consequence  of  these  letters 
the  men  engaged  in  the  shops  quitted  work. 
One  of  the  locomotive  engineers  also  testified 
that  three  partially  masked  men  approached  him 
on  his  engine  and  used  violent  and  threatening 
language.  It  was  held  that  BeiTj  was  guilty  of 
interference  with  the  operation  of  the  railroad, 
and,  on  the  sole  ground  that  it  was  in  the  hands 
of  a  receiver,  was  guilty  of  contempt  of  court. 
He  was  accordingly  sentenced  to  imprisonment 
for  two  months. 

In  the  case  of  Higgins,^  decided  by  Judge 
Pardee,  in  Texas,  in  1886,  first  appears  (besides 
the  ordinary  proposition  that  whoever  interferes 
with  property  in  the  possession  of  a  receiver  is 
guilty  of  contempt)  the  proposition,  destined  to 
awake  still  wider  discussion  (see  the  Northern 
Pacific  Railway  case  discussed  in  §  55),  that  while 
the  employees  of  receivers,  although  pro  hac  vice 
officers  of  the  court,  may  quit  their  employment, 
as  can  employees  of  private  parties,  they  cannot 
so  quit  as  intentionally  thereby  to  disable  the 
property,  nor  combine  nor  conspire  to  quit  with 
or  without  notice  with  the  object  and  intent 
of  crippling  the  property  and  its  operation. 
Orders  had  been  issued  from  a  secret  organiza- 
tion to  all  their  employees  to  quit  work,  whereby 
they  did  quit,  and  delayed  the  operation  of  the 

*27F.  R.,  443. 


OF   THE   UNITED   STATES  331 

railway,  and  this  action  was  declared  a  gross 
contempt  of  court.  Judge  Pardee  found  that 
the  real  reason  of  the  strike  was  to  compel  recog- 
nition of  the  secret  labor  organization  as  an  ex- 
isting power,  so  that  its  .  officers  shall  be  con- 
sulted in  the  operation  of  a  railroad  of  which 
they  "were  not  even  employees;  and  declared 
"  that  this  intolerable  conduct  goes  beyond  crim- 
inal contempt  of  court,  into  the  domain  of  fe- 
lonious crimes."  "It  may  not  be  generally 
known,"  adds  the  judge,  "but  the  power  of  the 
court,  under  the  law,  in  punishing  such  cases  is 
unlimited  in  imposing  fines  or  imprisonment," 
and  the  persons  charged  were  sentenced  as  fol- 
lows: The  defendant  Higgins,  for  threatening 
and  cursing  the  employees,  fifteen  days'  impris- 
onment ;  Gordon,  for  intimidating  the  employees 
and  throwing  stones  at  them,  severely  injm'ing 
one  Roberts,  ninety  days  ;  Wilson,  for  displac- 
ing a  switch  and  derailing  an  engine,  five 
months ;  several  others,  for  taking  forcible  pos- 
session of  a  switch  and  track,  resisting  officers, 
and  threatening  the  employees,  three  months. 

We  have  shown  above,  in  §  55,  that  it  is 
doubtful  whether  that  part  of  this  decision  which 
holds  a  strike  an  unlawful  conspiracy,  merely 
because  made  by  simultaneous  concert,  for  the 
purpose  of  crippling  a  railroad  or  its  operation, 
is  now  law  ;  but,  undoubtedly,  if  the  court  found 
that  the  main  object  was  not  to  redi'ess  a  fair 


332        HANDBOOK   TO   THE   LABOR   LAW 

grievance  of  the  strikers  themselves,  but  to  con- 
trol the  railway  mauagcrs  in  their  actions,  and 
force  recognition  of  a  labor  organization,  many 
of  whose  members  were  not  even  employees  of 
the  railway  itself,  the  case  is  still  law  ;  although 
the  extreme  difficulty  of  distinguishing  such  mo- 
tives has  been  fully  pointed  out  before. 

The  Coeur  d'Alene  case,  already  discussed  by 
us  in  §  64,^  was  also  a  case  where  the  mining 
company,  plaintiff,  was  in  the  hands  of  a  re- 
ceiver ;  and  the  defendants,  although  claiming 
to  be  lawful  labor  unions,  were  in  fact  inter- 
fering with  the  possession  and  working  of  the 
plaintiffs  property,  and  the  injunction  previ- 
ously granted  was  continued.  It  appears  in 
the  opinion  that  service  of  the  injunction  order 
had  been  made  iipon  the  proprietors  of  two 
newspapers,  which  had  led  to  the  report  that 
the  public  press  was  muzzled.  The  court  held 
that  such  service  was  not  intended  to  restrain 
publication  of  the  neAvspapers.  "  The  courts, 
with  good  reason,  expect  the  public  press  to  be 
conservators  of  the  peace ;  and  whether  or  not 
they  agree  with  the  law,  either  as  enacted  or  as 
construed,  that  they  will  in  good  faith  advise  its 
observance  until  amended  or  reversed." 

In  Farmers'  Trust  Co.  v.  Northern  Pacific  Rail- 
way Co.,®  more  fully  discussed  in  §§  55,  58,  64, 

*51F.  R.,  260.  •60F.  R.,  803. 


OF   THE   UNITED   STATES  333 

Judge  Jenkins  granted  the  famous  order  against 
the  employees  of  the  receiver  from  so  combicing 
and  conspiring  to  quit  their  service  as  to  cripple 
the  projDert}^  or  prevent  or  hinder  the  operation 
of  the  railroad ;  and  against  other  defendants 
not  employees,  but  officers  of  labor  organizations, 
from  conspiring  to  cause  a  strike  upon  the  rail- 
road, and  from  ordering  or  advising  others  to 
quit  its  service.  So  far  as  this  case  was  modi- 
fied by  the  Circuit  Court  of  Appeals,''  it  would 
appear  that  such  part  of  the  injunction  as  for- 
bade employees  from  striking  so  as  to  cripple 
the  railway,  etc.,  and  which  forbade  members  of 
labor  organizations  not  employees  from  advis- 
ing them  so  to  do,  was  annulled.  Remembering 
that  the  employees  were — as  Judge  Pardee  said 
— pro  hac  vice  officers  of  the  court,  it  may  be 
questioned  whether  the  ruling  that  a  combina- 
tion of  labor  organizations,  not  employees,  to 
persuade  them  to  strike — that  is  to  cease  to  per- 
form such  duties — was  a  lawful  conspiracy,  even 
though  the  employees  themselves  might  simul- 
taneously leave  work  or  even  advise  each  other 
to  do  so.  This  is,  however,  both  the  leading 
and  the  latest  case  upon  strikes  against  receiv- 
ers, and  its  elaborate  opinion  and  the  volumi- 
nous injunction  order  must  be  taken  to-day  to  ex- 
press the  law.    There  is  no  doubt,  however,  that 


'  Arthur  vl  Oakes,  63  F.  R.,  310. 


3;"}4        HANDBOOK    TO   THE   LABOII    LAW 

where  the  property  of  a  railroad  or  other  corpo- 
ration is  being  administered  by  a  receiver,  it  is 
competent  for  the  court  appointing  him  to  ad- 
just difficulties  between  such  receiver  and  his 
employees  which  in  the  absence  of  such  adjust- 
ment would  tend  to  injure  the  property  and  de- 
feat the  purpose  of  the  receivership ;  and  this 
principle  imquestionably  gives  the  coiu't  some- 
what greater  power  in  enforcing  the  contracts  of 
the  employees  than  exists  in  ordinary  cases  or 
with  private  employers  of  labor.** 

So,  in  Booth  v.  Brown,*  where  the  employees 
of  receivers  of  a  railroad  have  joined  in  a  gen- 
eral strike,  without  grievance  of  their  own,  for 
the  purpose  of  compelling,  by  obstruction  of 
travel,  parties  to  one  side  of  a  pending  contro- 
versy to  yield  actual  or  supposed  rights,  Judge 
Hauford  refused  to  order  the  reinstatement  of 
such  striking  employees  by  the  receivers. 

§  66.  Labor  Combinations  made  Unlawful  under 
Recent  Federal  Statutes. — In  §  64  we  discussed 
the  history  of  remedies  by  injunction  and  con- 
tempt process,  and  noted  that  an  injunction 
could  not  be  granted  solely  as  against  a  crime 
unless  there  were  some  property  or  contract 
right  involved.  In  §  65  we  noted  the  fact  of  the 
increased  modern  practice  of  putting  corpora- 

8  Waterhouse  v.  Comer,  55  F.  R.,'  149.      '  62  F.  R.,  794. 


OF   THE    UNITED    STATES  335 

tions,  and  particularly  railroads,  in  the  hands  of 
receivers  appointed  bv  tlie  federal  courts,  with 
the  consequence  that  any  interference  with  the 
possession  or  management  of  the  receiver  be- 
comes a  matter  for  which  contempt  process  may 
lie.  It  remains  in  this  section  to  note  the  great 
extension  of  equity  jurisdiction  caused  by  the 
recent  federal  statutes  concerning  interstate 
commerce  and  trusts  or  combinations.  Before 
these  statutes— although  undoubtedly  the  owners 
of  a  railway  had  a  property  right  which  would  jus- 
tify the  interference  of  courts  of  equity  in  labor 
disputes  in  all  proper  cases — such  remedies  were 
not  very  often  sought ;  and  the  government  as 
government,  and  the  courts  as  courts,  could 
not  intervene  except  by  the  ordinary  processes 
of  ci'iminal  law,  by  the  police,  or,  in  case  of  ex- 
treme disorder,  by  militia  or  troops.  The  Inter- 
state Commerce  act,  passed,  first,  February  4, 
1887,1  and  amended  March  2,  1889,^  applied  to 
any  common  carrier  engaged  in  the  transporta- 
tion of  passengers  or  property,  wholly  or  partly 
by  railroad,  to  or  from  one  state  or  territory  of 
the  United  States  to  any  other  state  or  country ; 
or  from  any  place  in  the  United  States  through 
a  foreign  country  to  any  other  place  in  the 
United  States.     In  short,  it  applied  to  all  possi- 


'  U.  S.  Stats.,  1887,  Chap.  104. 
2  Ibid.,  188y,  Chap.  382. 


o.lO         IIAXDROOK    TO    THE    LABOR    LAW 

ble  transportatious  of  passengers  or  property 
except  such  as  ^vere  received,  transported,  and 
delivered  entirely  within  one  state  or  territory. 
The  object  of  the  statute  was,  of  coui'se,  to  regu- 
late charges  and  forbid  unreasonable  advantages 
or  preferences  to  special  places  or  persons,  and 
to  forbid  the  pooling  of  earnings,  and  to  create 
a  permanent  national  commission  for  the  en- 
forcement of  the  provisions  of  the  statute.  But 
it  had  two  very  important  consequences.  Sec- 
tion 10  made  it  a  misdemeanor  for  any  person 
employed  to  do  or  suffer  any  interference  with 
such  interstate  transportation,  and  while  it  was 
probably  intended  to  apply  only  to  interference 
by  improper  exactions,  charges,  or  combinations 
among  the  railroad  companies,  it  in  fact  applied 
equally  to  interferences  by  the  railroad  em- 
ployees with  the  actual  transportation  or  its  ma- 
chinery, and  such  interference  being  thereby 
made  criminal,  any  combination  to  effect  it  be- 
came, of  course,  criminal  also  (see  above,  §§  51, 
55),  Secondly,  it  put  all  matters  of  interstate 
transportation  so  expressly  under  the  protection 
of  the  United  States  government  as  to  make  pos- 
sible the  application  by  the  courts  of  equity  of  the 
theory  that  the  government  itself  had  a  property 
right  in  goods  the  subject  of  such  transportation, 
which  would  justify  them  in  granting  to  it  the 
affirmative  protection  of  the  powerful  arm  of  the 
courts  of  equity. 


OF   THE    UNITED    STATES  337 

But  a  far  more  momentous  statute  in  extend- 
ing the  powers  of  the  federal  government  over 
labor  disputes  was  the  Anti-Trust  Act  of 
Julj  2,  1890.^  Section  1  of  this  act  expressly 
provided  that  "  Every  contract,  combination  in 
the  form  of  trust  or  otherwise,  or  conspiracy,  in 
restraint  of  trade  or  commerce  among  the  several 
states,  or  with  foreign  nations,  is  hereby  declared 
to  be  illegal." 

It  is  probable  that  Congress,  when  it  passed 
this  statute,  also  had  in  mind  only  such  combi- 
nations among  employers  or  purchasers  ;  but  the 
statute  made  no  such  limitation,  and  very  prob- 
ably would  not  have  been  held  constitutional  had 
it  done  so.  Consequently  the  words  of  this  sec- 
tion apply  equally  to  all  "  combinations  .  .  . 
in  restraint  of  .  .  .  commerce  among  the 
several  states ; "  and  it  is  easy  to  see  how  the 
courts  were  forced  to  hold  that  these  words 
would  include  combinations  by  laboring  men 
intended  to  impede  or  prevent  transportation  of 
interstate  freight  or  passengers,  especially  when 
read  in  connection  with  the  words  of  the  Inter- 
state Commerce  Act  itself.  But  more.  Section  4 
provided  that  "  the  several  circuit  courts  of  the 
United  States  are  hereby  invested  with  juris- 
diction to  prevent  and  restrain  violations  of  this 
act ;  and  it  shall  be  the  duty  of  the  several  dis- 


^U.  S.  State.  5l8t  Cong.,  1st  Sees.,  Chap.  647. 
22 


lirJS         TIANDHOOK    TO   THE    LAP.Oi:    LAW 

trict  attoruej's  of  the  XTnited  States,  in  their 
respective  districts  uuder  the  direction  of  the 
Attorney-General,  to  institute  proceedings  in 
equity  to  prevent  and  restrain  such  viola- 
tions." 

"  Such  proceedings  may  be  by  way  of  petition 
setting  forth  the  case  and  praying  that  such 
violation  shall  be  enjoined  or  otherwise  pro- 
hibited." 

If  there  had  been  any  previous  doubt,  under 
the  Interstate  Commerce  Act,  that  the  federal 
government  had  such  a  property  right  in  goods 
the  subject  of  interstate  transportation  that  they 
could  invoke  equity  jurisdiction  to  secure  the 
same,  such  doubt  is  wholly  removed  by  this 
section.  The  circuit  courts  are  especially  in- 
vested with  jurisdiction  to  prevent  any  and  all 
violations  of  the  act ;  and  the  district  attorneys 
of  the  United  States  are  expressly  charged  with 
the  duty  of  instituting  proceedings  in  equity  to 
prevent  and  restrain  such  ;  and,  moreover,  the 
statute  is  precise  enough  to  point  out  how 
exactly  it  may  be  done,  viz.,  that  such  proceed- 
ings may  be  by  the  way  of  petition  setting  forth 
the  case  and  praying  that  such  violation  shall  be 
enjoined.  And  now,  the  injimction  once  issued, 
as  the  statute  requires,  the  ordinary  remedies  of 
contempt  process,  etc.,  follow  as  a  matter  of 
course,  and  there  can  be  no  question  of  their 
legality,  pro^dded  only  the  court  had  jurisdiction 


OF    THE    UXITED    STATES  339 

of  the  parties,  and  the  Supreme  Court  of  the 
United  States  has  so  decided.^ 

That  case  of  Blindell  v.  Hagan,^  decided  in 
1893,  granted  the  injunction  against  the  defend- 
ants— a  combination  of  persons  who  were  pre- 
venting the  plaintiffs  ship  from  getting  a  crew — 
upon  ordinary  equity  grounds  ;  but  not  upon  the 
Anti-Trust  Act,  holding  that  this  statute  does  not 
authorize  the  bringing  of  injunction  suits  in 
equity  by  any  parties  except  the  government. 
But  the  Toledo  Railway  case  •>  held  that  the  third 
section  of  the  Interstate  Commerce  Act — provid- 
ing that  it  should  be  unlawful  for  any  common  car- 
rier subject  to  the  act  to  make  or  give  any  undue 
or  unreasonable  preference,  etc.,  to  any  particular 
person  or  corporation — did  justify  an  injunction 
against  persons  so  interfering  with  the  business 
of  a  private  corporation  ;  and  that  this  jurisdiction 
attaches  because  of  the  subject-matter,  and  with- 
out regard  to  the  citizenship  of  the  parties.  The 
same  case  ^  contains  Judge  Taft's  celebrated  de- 
cision, in  which  he  awarded  an  injunction  against 
P.  M.  Arthur  from  ordering  the  engineers  to 
carry  out  Rule  12  of  the  Brotherhood  of  Loco- 
motive Engineers,  which  rule  provided  that 
"  when  an  issue  has  been  sustained  by  the  grand 

«  In  re  Debs,  64  F.  R.,  724;   158  U.  S.,  564. 

'  54  F.  R.,  40.     See  §§  55,  58,  64. 

«  Toledo  Ry.  Co.  v.  Pennsylvania  Co.,  54  F.  R.,  746. 

'  54  F.  R.,  730. 


340         IIAXDBOOK    TO   THE    LABOR    LAW 

chief  ...  it  shall  be  recognized  as  a  violation 
of  obligation  for  a  member  of  the  Brotherhood 
.  who  may  be  employed  on  a  railroad  run- 
uiug  in  connection  with  .  .  .  said  road,  to 
handle  the  property  belonging  to  said  railroad 
or  system  in  any  way  that  may  benefit  said  com- 
pany in  which  the  B.  L.  E.  is  at  issue  imtil  the 
grievance  is  settled."  The  case  also  decided 
that  railroad  employees  engaging  in  such  a  boy- 
cott of  another  railroad  were  guilty  of  a  con- 
spiracy to  commit  the  misdemeanor  described 
in  Sec.  10  of  the  Interstate  Commerce  Act  ; 
and  hence  if  any  person  engaged  in  it  does  an 
act  in  furtherance  thereof,  all  combining  for  the 
purpose  are  guilty  of  criminal  conspiracy,  as 
defined  by  Sec.  5440  Revised  Statutes.  Both 
cases  held  that  such  mandatory  injunctions  were 
binding  upon  all  officers  and  employees  of  the 
defendant  having  proper  notice  thereof,  whether 
they  were  made  parties  to  the  bill  or  not.  And 
the  second  case  goes  rather  far  in  holding  that 
employees  might  be  enjoined  from  quitting  ser- 
vice in  such  a  manner  as  to  cause  peril  to  life  or 
injury  to  property,  or  to  subject  the  raikoad  to 
legal  penalties,  or  to  cause  irremediable  injuries 
to  their  employers  and  the  public,  and  from 
enforcing  rules  of  labor  unions  which  so  result, 
such  as  those  requiring  an  arbitrary  strike  with- 
out cause,  merely  to  enforce  a  boycott  against  a 
connecting  line.     (See  §  55.) 


OF   THE   UNITED   STATES  341 

In  the  same  year  came  the  case  of  the  United 
States  V.  Workingmen's  Amalgamated  Council,^ 
in  which  the  Circuit  Com-t  for  Louisiana  awarded 
an  injunction  against  interference  with  interstate 
commerce  by  a  combination  of  draymen  and 
longshoremen,  and  held  that  such  rights  could 
be  enforced  under  the  Anti-Trust  Act,  which  was 
definitely  held  to  apply  to  combinations  of 
laborers  as  well  as  capitalists.  In  the  meantime 
the  case  of  United  States  v.  Patterson  ^  had  been 
decided  to  the  contrary  by  the  Circuit  Court  for 
Massachusetts.  Judge  Putnam  said  (and  events 
have  since  shown  that  he  was  correct) :  "  If  the 
proposition  made  by  the  United  States  is  taken 
with  its  full  force,  the  inevitable  result  will  be 
that  the  federal  courts  will  be  compelled  to  ap- 
ply this  statute  to  all  attempts  to  restrain  com- 
merce among  the  states,  or  commerce  with  for- 
eign nations,  by  strikes  or  boycotts,  and  by 
every  method  of  interference  by  way  of  vio- 
lence or  intimidation.  It  is  not  to  be  presumed 
that  Congress  intended  thus  to  extend  the  juris- 
diction of  the  courts  of  the  United  States  with- 
out very  clear  language.  Such  language  I  do 
not  find  in  the  statute."  These  anticipations 
have  been  more  than  realized  and  the  conserva- 
tive ground  taken  in  United  States  v.  Patterson 
has  long  since  been  abandoned. 

«54F.  R.,904.  •55F.  R.,  605. 


342        HANDBOOK    TO   THE   LABOR   LAW 

In  Southern  California  Railway  Co.  v.  Ruther- 
ford '°  jurisdiction  was  taken  on  the  ground  of 
the  Interstate  Commerce  Act,  and  the  interfer- 
ence of  the  defendants,  employees  of  a  railroad 
company,  with  interstate  commerce  and  the 
transmission  of  mails ;  and  an  injunction  was 
issued  requiring  the  employees  "  to  perform  all 
of  their  regular  and  accustomed  duties  so  long 
as  they  remain  in  the  employment  of  the  com- 
pany." This  case  has  been  already  criticised. 
(See  §  6.)  Judge  Taft,  in  thfe  Toledo  Railroad 
cases  above  noted,  specially  observed  that  a  court 
of  equity  could  not  enforce  by  mandatory  injunc- 
tion the  performance  of  the  labor  contract,  and 
if  such  an  injunction  as  that  in  this  case  is  now 
justifiable  upon  equity  principles,  it  must  be  only 
in  consequence  of  the  peculiar  provisions  of  the 
Anti-Trust  Law,  and  is,  perhaps,  the  most  strik- 
ing example  of  its  far-reaching  effect.  So,  in 
United  States  v.  Elliot,"  Judge  Thayer  held,  in 
the  Missouri  Circuit  Court,  that  while  it  is  not 
ordinarily  lawful  or  expedient  for  a  court  of 
equity  to  award  an  injunction  to  prevent  the 
doing  of  acts  that  are  in  themselves  crimes,  by 
Sec.  4  of  the  Anti-Trust  Act  the  court  was  ex- 
pressly given  such  jurisdiction  in  cases  of  a  com- 
bination to  restrain  or  interfere  with  interstate 
commerce  ;  that  a  combination  whose  professed 

62  F.  R.,  796.  n  62  F.  R.,  801. 


OF    THE   UNITED    STATES  343 

object  was  to  arrest  the  operation  of  railroads 
running  between  states  was  necessarily  such  an 
unlawful  conspiracy ;  and  an  injunction  was 
granted  against  the  defendants  both  against 
doing  the  acts  as  threatened,  to  wit,  inducing 
persons  in  the  employment  of  said  railroad  to 
leave  its  service,  and  against  preventing  them 
from  procuring  other  operatives,  and  against 
issuing  orders  to  the  persons  in  the  employ 
of  the  several  railroad  companies  to  cease  from 
operating  their  trains ;  and  the  latter  principle 
was  reaffirmed,  and  United  States  v.  Patterson 
expressly  disapproved,  in  Thomas  v.  Cincinnati 
Railway  Co.^'- 

The  principles  announced  by  Judge  Ross  were 
further  developed  by  him  in  a  charge  to  the 
grand  jury  a  few  weeks  later,'^  and  he  also 
held  that  a  railroad  is  not  obhged  under  its 
charter  to  move  trains  when  the  employees  re- 
fuse to  move  them  because  Pullman  cars  are 
attached  ;  nor  to  leave  all  such  cars  and  run  the 
rest  of  the  train  ;  and  where  the  regular  passen- 
ger trains  have  been  designated  for  carrying  mail, 
the  failure  of  a  railroad  to  run  other  mail  trains 
is  not  a  violation  of  the  statute  against  obstruc- 
tion of  the  mails  ;  that  a  conspiracy  to  obstruct 


"«  62  F.  R.,  803.     See  also  §§  55,  58  for  further  discussion 
of  this  case. 

'3  June  29,  1894-     See  In  re  Grand  Jury,  62  F.  R.,  834. 


344         HANDBOOK    TO    THE    LABOR   LAW 

the  mail  is  an  offence  against  United  States  law, 
and  that  persons  inciting  rebellion  or  insurrec- 
tion against  the  authority  of  the  United  States 
or  the  laws  thereof  may  be  punished  criminally 
under  U.  S.  R.  S.  5334 ;  and  he  specially  called 
the  attention  of  the  grand  jur}'  to  a  report  in  the 
newspapers  of  a  speech  made  by  one  Doctor 
Ravlin  at  a  public  meeting  held  on  a  previous 
night.  This  charge  is  i:)articularly  interesting 
because  it  covers  not  only  the  point  of  the 
criminal  liability  of  the  laborers,  but  of  the  rail- 
way company  as  well,  and  even  of  persons  who 
belong  to  neither,  but  are  engaged  in  fomenting 
the  disorder. 

The  case  of  United  States  v.  Agler  "  further 
reinforces  the  general  interpretation  of  the  Anti- 
Trust  Act,  and  holds  that  the  injunction  issued 
is  binding  as  against  a  person  not  even  named 
in  the  bill  nor  served  with  a  subpoena  as  "  one 
of  the  unknown  defendants  referred  to  in  the 
bill,"  w^henever  the  injunction  order  is  served 
upon  them.  By  Baker,  J. :  "  Prior  to  the  Act  of 
1890,  the  United  States  had  no  power  by  petition 
or  bill  to  go  into  its  com-ts  of  equity  and  invoke 
their  aid  to  prevent  interference  with  the  car- 
riage of  mails  or  interstate  commerce ;  prior  to 
that  time  the  sole  remedy  was  on  the  criminal 
side  of   the  court.     .     .     .     This  act   enlarged 

>*  fi2  F.  R.,  824. 


OF   THE    UNITED    STATES  345 

the  jurisdiction  of  the  federal  courts  aud  au- 
thorized them  to  apply  their  restraining  power 
for  the  purpose  of  checking  or  arresting  all  law- 
less interference  with  the  peaceable  aud  ordi- 
nary carriage  of  mails  and  conduct  of  raih'oad 
business  between  the  states." 

Another  instructive  charge  was  that  made  by 
Judge  Grosscup,  in  the  District  Court  of  Illinois, 
July  10,  1894'^  While  not  so  far  reaching  as 
that  of  Judge  Ross,  it  holds  that  the  open  and 
active  opposition  of  a  number  of  persons  to  the 
execution  of  the  laws  of  the  United  States,  of 
so  formidable  a  nature  as  to  defy  for  the  time 
being  the  authority  of  the  government,  consti- 
tutes an  insurrection,  even  though  not  accom- 
panied by  bloodshed  ;  and  charges  also  what  is 
criminal  conspiracy  :  "A  corrupt  or  wrongful 
agreement  between  two  or  more  persons,  that 
the  employees  of  railroads  carrying  the  mails 
and  conducting  interstate  commerce  should  quit, 
and  that  all  others  should,  by  threats  or  vio- 
lence, be  prevented  from  taking  their  ]3laces," 
and  that  two  or  more  leaders  of  a  labor  associa- 
tion insisting  on  demanding  such  quitting  of 
employment  are  guilty  of  criminal  conspiracy. 

Judge  Morrow,  in  his  charge  to  the  grand 
jury,  delivered  July  30,  1894,"  while  reaffirming 


"  In  re  Charge  to  Grand  Jury,  62  F.  R.,  828 
>«  62  F.  R.,  840. 


346        HANDBOOK   TO   THE   LABOR    LAW 

the  principle  as  to  conspiracy  of  employees 
apjainst  the  Anti-Trust  Act,  seems  to  difter  from 
Juilgo  Ross  in  holding  that  the  railroad  com- 
pany corporation  must  keep  its  line  open,  and 
this  without  regard  to  the  make-up  of  regular 
trains ;  in  other  words,  that  they  cannot  insist 
upon  moving  Pullman,  mail  cars,  etc.,  with  them. 

The  case  of  Lennon,  discussed  more  fully  in 
§  65,  was  a  case  where  one  railway  company  sued 
another  for  refusing  to  interchange  business  and 
cars  with  it  in  consequence  of  a  strike  or  boycott 
against  it,  in  the  course  of  which  litigation  the 
injunction  was  issued  under  which  Lennon  Avas 
held  for  contempt,  and  filed  his  petition  for 
habeas  corpus ;  and  the  court  again  held  that 
such  suits  between  railroad  companies  engaged 
in  interstate  commerce  involved  a  federal  ques- 
tion, without  regard  to  the  citizenship  of  the 
parties. 

The  elaborate  charge  of  Judge  Woods  in  the 
famous  case  of  United  States  v.  Debs,"  reaffirmed 
the  dissent  from  United  States  v.  Patterson,  and 
held  that  the  Anti-Ti'ust  Act  is  not  limited  by 
its  title,  "an  act  to  protect  trade  and  commerce 
against  unlawful  restraints  and  monopolies,"  to 
combinations  of  capital  merely,  or  of  a  contrac- 
tual nature  ;  but  the  words  "  contract,  combina- 
tion in  the  form  of  trust  or  otherwise,  or  conspir- 

>■  64  r.  R.,  724. 


OF   THE   UNITED   STATES  347 

acy,"  include  any  combination  in  restraint  of 
trade  or  commerce,  whether  by  employers,  em- 
ployees, or  other  persons.  This  charge  contains, 
perhaps,  the  most  full  and  elaborate  interpreta- 
tion of  this  part  of  the  Anti-Trust  Act  and  con- 
sideration of  authorities,  and  has  been  reviewed 
by  the  United  States  Supreme  Court ; '®  and 
the  more  recent  decisions  seem  to  add  no  new 
principles.'" 

The  last  case  is  that  of  United  States  v.  Cas- 
sidy,"  which  was  an  indictment,  under  Revised 
Statutes  5440,  of  some  of  the  strikers  in  the  Cali- 
fornia Pullman  strike  of  1894,  for  conspiracy 
under  the  Anti-Trust  Act.  The  charge  is  most 
voluminous,  covering  eighty-two  pages  of  the  re- 
port, and  very  interesting  for  its  full  discussion 
of  the  facts. 


'«  158  U.  S.,  564. 

■»  United  States  v.  Debs,  65  F.  R.,  210.  This  was  the 
charge  given  by  Judge  Grosscup,  the  case  in  o-t  F.  R.  be- 
ing the  charge  upon  contempt  process.  For  other  charges, 
see  62  F.  R.,  828 ;  63  F.  R.,  436.  The  latter  was  a  charge 
against  the  employers,  it  having  been  alleged  that  some  of  the 
railroads  fomented  the  disorder  and  disturbance  of  trains, 
even  perhaps  the  destruction  of  property,  in  order  to  create 
public  sympathy  with  them  against  the  strike ;  and  this,  also, 
was  held  to  be  a  conspiracy  on  their  part  within  the  meaning 
of  the  interstate  law . 

""STFR.,  698. 


348        HANDBOOK   TO   THE   LAUOK   LAW 

CHAPTER  X 

REMEDIES   BY   AKBITRATION 

§  67.  State  Boards  of  Arbitration.  —  State 
boards  of  arbitration  have  been  provided  in 
nearly  half  the  states,  up  to  the  time  of  this 
writing,  for  the  adjustment  of  grievances  and 
disputes  between  employers  and  employees  by 
conciKation  or  arbitration.'  There  is  also  a 
federal  statute  (see  U.  S.  Laws,  1888,  Oh. 
1063)  applying,  however,  to  railroad  and  trans- 
portation companies  only.  It  was  under  this 
statute  (§  6)  that  President  Cleveland  appointed 
the  commissioners  to  investigate  the  Chicago 
riots  of  1894 

There  are  three  general  types  of  these  statutes 
providing  for  arbitration  of  labor  disputes  by  a 
state  board  (for  private  or  local  boards,  see  §  68). 
The  prevailing  type,  judging  by  the  number  of 
states  adopting  it,  is  that  of  the  New  York  law, 

'Mass.,  1886,  263;  1887,269;  1890,385;  Ct.,  1895,  239; 
N.  Y.,  1887,  63,  5;  N.  J.,  1892,  187,  6;  Pa.  Dig.,  pp.  133, 
134;  Ohio,  1893,  p.  83;  Mich.,  1889,  238;  111.,  1895,  Special 
Session;  Iowa,  1886,  20,  1;  "Wis.,  1895,  364;  Kansas,  1886, 
28;  Cal,  1891,  51;  Idaho  Con.,  Art.  13,  7;  Wy.  Con.,  Art. 
5,  28;  19,  2;  Mon.  Pol.  C,  3330;  La.,  1894,  139. 


OF  THE   UNITED   STATES  349 

though  the  Massachusetts  statute,  which  is  em- 
bodied principally  in  the  Ohio,  Illinois,  Wiscon- 
sin, Montana,  California,  and  Louisiana  laws, 
seems  to  work  better  in  practice.  The  Pennsyl- 
vania method  is  more  peculiar,  and  is  followed 
only  in  Iowa  and  Kansas. 

The  state  board  is,  in  nearly  all  the  states,  ap- 
pointed by  the  governor,  and  (except  in  Wiscon- 
sin) confirmed  by  the  Senate,  or,  in  Massachu- 
setts, the  Council.^  In  all  these  states,  with  the 
exception  of  Louisiana,  the  board  consists  of 
three  persons.  In  New  York  and  Connecticut 
one  must  be  selected  from  each  of  the  two  par- 
ties casting  the  greatest  number  of  votes  at  the 
last  election  for  governor,  and  a  third  from  a 
hona-Jide  labor  organization.  But  in  Massachu- 
setts, Wisconsin,  Ohio,  California,  and  Montana 
no  reference  is  made  to  poHtics ;  but  one  must 
be  an  employer  selected  from  some  association 
representing  employers,  and  one  from  some  la- 
bor organization  not  an  employer,  and  the  third 
to  be  appointed  upon  recommendation  of  the 
other  two,  or,  if  they  fail  to  agree,  by  the  gov- 
ernor. The  Louisiana  law  is  the  same,  except 
that  there  are  five  arbitrators.  In  Illinois  only 
one  must  be  an  employer,  and  only  one  other 
a  member  of  a  labor  organization,  and  not  more 


«Mas8.,   1886,203,   1;  Ct.,  N.  Y.,   O. ;   Mich.,   Wis.,  111., 
Mon.,  La.,  ib. 


350        HANDBOOK    TO   THE   LABOR   LAW 

than  two  of  the  same  poHtical  party.  In  Mich- 
igan the  governor  may  appoint  any  "compe- 
tent "  persons ;  in  New  Jersey  one  must  belong 
to  a  labor  organization.  In  Pennsylvania  the 
hoards  of  arbitration  are  practically  local  — 
that  is,  the  presiding  judges  of  the  Courts  of 
Common  Pleas  may  issue  a  license  for  the  estab- 
lishment of  such  boards  within  their  respective 
districts ;  and  this  is  followed  in  Iowa  and  Kan- 
sas. The  board  holds  office  for  three  years.^ 
They  may  appoint  a  secretary,  who  shall  keep 
full  records  of  their  proceedings  and  all  docu- 
ments and  testimony  forwarded  by  the  local 
boards  of  arbitration.*  Such  board  or  secretary 
has  the  power  to  issue  subpoenas,  administer 
oaths,  call  for  and  examine  books  and  papers  as 
far  as  is  possessed  by  courts  of  record  (see  also 
below) ;  ^  the  arbitrators  and  clerk  must  take  and 
subscribe  an  oath  of  office.^  In  other  states 
they  appoint  one  of  their  own  number  chairman 
and  one  secretary.''  They  must  generally  estab- 
lish rules  of  procedure ;  ^  and  in  some  states  such 
rules  must  be  approved  by  the  governor  and  at- 
torney-general or  council.^ 

3N.  Y.,  Mich.,   Mass.,   O.,   111.      One  year:   Cal.      Two 
years  :  Ct.,  Mon.,  Wis.     Fours  years  :  La.    Five  years  :  N.  J. 
♦Mass.,  1888,  261;  N.  Y.,  N.  J.,  Ct.,  Mich.,  111.,  Mon. 
'N.  Y.,  Mich,  N.  J. 

•  N.  Y.,  Ct.,  Wis.,  N.  J.  '  O.,  La.,  Wis. 

s  Mass,  0.,  111.,  Mon.,  La.,  Wis.      »  Mass.,  O.,  Mon.,  Wia. 


OF   THE    UNITED    STATES  351 

But  in  a  few  states  the  functions  of  the  state 
board  of  arbitration  are  filled  only  by  the  labor 
commissioner, '°  and  in  others  there  is  permission 
only  for  private  or  local  arbitration  (§  68). 

The  usual  provision  for  setting  the  machinery 
of  the  state  board  of  arbitration  in  motion  is  set 
forth  in  the  note." 


"Mo.,  6354;   Col.,  1887,  62;  N.  D.,  1890,  46. 

"  (1)  By  the  Massachusetts  method  :  "  Whenever  any  contro- 
versy or  difference  not  involving  questions  which  may  be  the 
subject  of  a  suit  at  law  or  bill  in  equity  exists  between  an 
employer,  whether  an  individual  or  corporation,  and  his  em- 
ployees, if  at  the  time  he  employs  not  less  than  twenty-five 
persons  (20  in  Mon.,  La.)  in  the  same  general  line  of  business 
in  any  city  or  town  in  the  state,  the  board  shall,  upon  the  appli- 
cation of  the  employer,  or  of  a  majority  of  his  employees  in 
the  department  in  which  the  controversy  exists,  or  their  duly 
authorized  agent,  or  by  both  parties,  containing  a  concise  state- 
ment of  the  grievances  complained  of,  and  a  promise  to 
continue  on  in  business  or  at  work  without  any  lockout  or 
strike  until  the  decision  of  said  board,  which  shall  be  made 
within  three  weeks  (four  weeks  in  Mon.,  Wis. ;  ten  days  in 
O.,  La.)  from  the  date  of  filing  said  application,  as  soon  as 
practicable  visit  the  locality  of  the  dispute  and  make  careful 
inquiry  into  the  cause  thereof,  hear  all  persons  interested, 
and  advise  the  respective  parties  what,  if  anything,  ought  to 
be  done  or  submitted  to  by  either  or  both  to  adjust  said  dis- 
pute." Mass.,  ii.,  3  and  4;  1887,  269;  O.,  ib.,  4-7;  Mon. 
Pol.  C,  3333-4;  111.,  1895,  Spec,  §§2-3;  AVis.,  1895,  364, 
3-4;  CaL,  1891,  51,  2-3;  La.,  li.,  4,  6,  and  7. 

And  when  such  agent  claims  to  represent  a  majority  of  the 
employees,  the  board  shall  satisfy  itself  that  such  agent  is 
duly  authorized  in  writing  to  represent  such  employees,  but 
the  names  of  the  employees  giving  authority  shall  be  kept 


352         IIAXDBOOK    TO   THE    LABOR    LAW 

It  is  too  soon  as  yet  to  pass  judgment  on 
these  statutes ;  and  they  have  of  couise  given 

secret  by  the  board.  Mass.,  ib.,  4;  O.,  ih.,  G;  Mon.  Pol. 
C,  3334 ;  La.,  ib.,  (!. 

Upon  receipt  of  said  application  the  board  shall  cause 
public  notice  of  hearing,  except,  when  both  parties  join  in  the 
application,  such  notice  is  not  necessary  if  the  parties  so 
desire,  though  the  board  may  at  any  stage  order  public  notice. 
Mass.,  ib.,  4;  O.,  ib.,  8;  Mon.,  ib.;  111.,  ib.;  La.,  ib.,  8; 
Wis.,  ib.,  4;  Cal.,  ib.,  2. 

In  Louisiana,  when  such  mediation  has  failed  to  bring 
about  an  adjustment  of  differences,  or  in  Massachusetts,  Wis- 
consin, Illinois,  California,  and  Montana,  whenever  such  de- 
cision has  been  made,  it  shall  at  once  be  made  public  and 
recorded  upon  the  books  of  record  of  the  board,  and  a  short 
statement  thereof  published  in  their  annual  report.  Mass., 
ib.,  3;  O.,  ib.,  5;  Mon.,  ib.,  3335;  111.,  ib.,  2;  La.,  ib.,  5; 
Wis.,  ib.,  5;  Cal.,  ib.,  2. 

Should  the  petitioner  or  petitioners  fail  to  perform  the 
terms  made  in  their  application,  the  board  shall  suspend  pro- 
ceedings. O.,  ib.,  8;  Mon.,  ib.;  La.,  ib.,  8;  Wis.,  ib.,  4; 
Cal.,  ib.,  3. 

The  board  has  power  to  summon  as  witnesses  any  operative 
in  the  department  of  business  affected,  and  any  person  who 
keeps  the  record  of  wages  earned  therein,  and  examine  such 
witnesses  under  oath,  and  require  production  of  books  and 
papers.  O.,  ib.,  9,  1894,  p.  373;  Mon.,  ib.;  111.,  ib.,  3; 
La.,  ib.,  9 ;  Wis.,  ib.,  4. 

And  the  board  seems  to  have  a  general  power  to  compel 
the  attendance  of  witnesses  or  the  production  of  papers.  O., 
ib.,  9  ;  La.,  ib.,  9  ;  Wis.,  ib.,  4. 

In  several  states  both  parties  may  nominate  a  person  to  act 
as  expert  for  the  special  investigation,  who  shall  be  sworn 
and  paid  for  his  services.  Mass.,  1890,  385;  Mon.  Pol. 
C,  3334;  Wis.,  ii.,  4. 

In  Wisconsin,  Ohio,  Montana,  and  Louisiana  the  mayor  of 


OF   THE   UNITED   STATES  353 

rise  to  no  reported  case  at  law  ;  their  very  object 
being  partly  to  avoid  the  bonds  of  legal  pre- 

any  city,  or,  in  Wisconsin,  the  board  of  a  town  or  village,  or 
judge  of  any  district  (probate,  O.)  court  in  a  parish  (La.), 
or  two  county  commissioners  (Mon.),  to  whom  it  is  made  to 
appear  that  a  strike  or  lockout  is  soon  to  occur,  or  has  actu- 
ally occurred,  shall  at  once  notify  the  state  board  of  the  fact ; 
and  whenever  it  comes  to  the  knowledge  of  the  state  board 
that  such  lockout  has  occurred,  it  shall  act  at  its  own  motion. 
O.,  lb.,  13,  1894,  p.  374;  Mon.,  ib.,  3337;  La.,  ib.,  10; 
Wis.,  ib.,  8,  9. 

Except  as  above,  in  Ohio  and  Louisiana,  it  does  not  appear 
that  the  board  has  any  power  beyond  making  this  written  de- 
cision public,  though  it  is  generally  declared  to  be  the  duty  of 
the  state  board  to  endeavor,  by  mediation  or  conciliation,  to 
effect  an  amicable  settlement  before  a  strike  or  lockout,  and 
to  induce  the  parties  to  submit  the  matters  in  dispute  to  the 
state  board,  in  which  case  it  would  seem  that  the  board's  de- 
cision might  have  the  same  legal  effect  as  that  of  an  ordinary 
arbitrament  under  the  law.     O.,  ib.,  4;  La.,  t'i.,  11. 

But  in  the  other  states  such  decision  is  binding,  when  both 
parties  join  in  the  application,  for  six  months,  or  until  either 
party  has  given  the  other  notice  in  writing  of  his  intention 
not  to  be  bound  by  the  same  at  the  expiration  of  sixty  days 
from  such  notice.  Said  notice  may  be  given  to  the  employees 
by  posting  in  the  shop  or  factory.  Mass.,  ib.,  G;  111.,  ib., 
5;  Mon.,  ib.,  3336;  Wis.,  ib.,  6;  Cal.,  ib.,  4. 

There  is  generally  a  provision  for  an  annual  report  to  the 
legislature,  which,  in  Ohio  and  Louisiana,  shall  include  sug- 
gestions as  to  legislation,  and  statement  of  the  actual  work- 
ings of  the  board. 

(2)  By  the  New  York  method,  whenever  a  strike  or  lockout 
shall  occur,  or  be  threatened,  and  come  to  the  knowledge  of 
the  board,  it  shall  proceed  at  once  to  the  locality,  communi- 
cate with  the  parties,  and  endeavor  to  affect  an  amicable 
iettlement,  and  may  inquire  into  the  cause  of  the  controversy 
23 


354        HANDBOOK    TO   TIIK   LABOR   LAW 

cedent.  The  state  boards  have  been  far  more 
successful  as  boards  of  mediation  or  conciliation 

with  all  the  ordinary  powers.  N.  Y.,  1887,  63,  9 ;  N.  J., 
1892,  137,  10;  Ct.,  1895,  239,  4;  Mich.,  1889,  238,  5;  Mo., 
6354 ;  see  also  above  for  similar  provisions  in  the  other 
states. 

Any  grievance  or  di.spute  may  be  submitted  by  the  volun- 
tary action  of  both  parties  directly  to  the  state  board  in  the 
first  instance. 

Such  board  shall  then  proceed  to  the  locality  and  inquire 
into  the  cause  of  the  dispute,  both  parties  submitting  to  it  in 
writing  their  complaints,  and  severally  agreeing  in  writing  to 
submit  to  the  decision  of  the  board,  and  promising  to  continue 
work  without  a  lockout  or  strike  until  such  decision,  provided 
it  be  rendered  within  ten  days  after  the  completion  of  the  in- 
vestigation. 

After  the  matter  has  been  fully  heard,  the  board,  or  a  ma- 
jority, shall  within  ten  days  render  a  written  decision,  stating 
such  details  as  will  show  its  nature  and  the  points  disposed 
of.  N.  Y.,  lb.,  7-8;  Ct.,  ib.,  2-3;  Mich.,  ib.,  3-4;  N.  J., 
*6.,  8-9. 

Decisions  may  be  rendered  by  a  majority  of  the  board,  and 
a  majority  shall  constitute  a  quorum.  N.  Y.,  ib.,  6;  N.  J., 
t6.,  7. 

State  Board  as  Appellate  from  Local  Boards. — In  New 
York  and  New  Jersey  the  state  board  holds  appeals  from  deci- 
sions in  local  boards,  and  its  decision  is  final,  the  submis- 
sion to  arbitration  having  in  the  first  instance,  of  course,  been 
voluntary  by  both  parties. 

(3)  By  the  Pennsylvania  method  the  presiding  judges  of 
the  courts  of  common  pleas  (district  court  in  Iowa  and  Kan- 
sas), upon  petition,  or  agreement  of  the  parties,  shall  issue  a 
license  for  the  establishment  within  their  respective  distncts 
(counties,  lo.)  of  tribunals  for  the  settlement  of  disputes  be- 
tween employers  and  employees  in  the  iron,  steel,  glass, 
textile   fabrics,   and   coal   trades,  or  each  of  them  (in  me- 


OF    THE    UNITED    STATES  355 

than  in  arbitrating  disputes  already  well  under 
way,  or  strikes.     Indeed,  to  their  actual  arbitra- 

chanical,  manufacturing,  and  mining  industries,  in  Iowa  and 
Kansas).     Pa.  Dig.,  p.  133,  67;  lo.,  1886,  20,  1;  Kan.,  332. 

Such  petition  must  be  signed  by  fifty  (twenty  in  Iowa,  five 
in  Kansas)  emploj^ees,  employed  by  five  separate  firms  (four  in 
Iowa,  two  in  Kansas),  or  at  least  by  five  (four  in  Iowa)  em- 
ployers, each  one  employing  at  least  ten  (five  in  Iowa)  work- 
men (this  clause  omitted  in  Kansas),  or  by  the  representatives 
of  the  firm  (omitted  in  Kansas),  individual,  or  corporation 
employing  not  less  than  seventy-five  men.  And  the  agree- 
ment shall  be  signed  by  both  of  said  specified  numbers  and 
persons  :  Provided  that  (if  a  dispute  exists  at  the  time  the 
petition  is  presented,  and  a  suspension  of  work  has  happened, 
or  is  probable,  in  Pennsylvania)  the  judge  must  require  testi- 
mony to  be  taken  as  to  the  representative  character  of  said 
petitioners,  and  whether  they  represent  the  will  of  at  least 
one-half,  or  a  majoritj',  of  each  party  to  the  dispute.  If  not, 
the  license  may  be  denied.   Pa.,  t6.,  68  ;  lo.,  t6.,  2  ;  Kan.,  333. 

The  workmen  signing  the  petition  must  each  have  been  a 
resident  of  the  judicial  district  for  one  year,  and  engaged  in 
the  trade  they  profess  to  represent  for  two  years,  and  be 
United  States  citizens.  The  persons  signing  as  employers 
must  be  United  States  citizens  engaged  in  some  branch  of  the 
trades  before  mentioned  within  such  district  for  at  least  one 
year,  and  employing  therein  at  least  ten  workmen,  each  of  the 
class  hereinbefore  described,  and  may  be  a  firm,  individual, 
or  corporation,  and  the  petition  may  be  verified  by  the  oaths 
of  at  least  two  of  the  signers,  attesting  the  truth  of  the  facts 
stated  therein,  and  the  qualifications  of  the  signers  thereto. 
Pa.,  ib.^  69. 

The  umpire  shall  make  his  award  in  writing  to  the  tribunal, 
Slating  distinctly  his  decisions  on  the  subject-matter  sub- 
mitted, and  when  the  award  is  for  a  specific  sum  of  money, 
the  umpire  shall  forward  a  copy  of  the  same  to  the  clerk  of 
the  proper  court,     lo.,  i6.,  13;  Kan.,  340. 


3i56        HANDBOOK    TO   THE   LABOR   LAW 

tion  both  parties  will  rarely  submit.     To  com- 
pulsory arbitration,  as  is  known,  the  labor  organ- 

If  the  petition  is  signed  by  the  requisite  number  of  both  par- 
ties in  proper  form,  and  contains  the  names  of  the  persons  to 
compose  the  tribunal,  being  an  equal  number  on  each  side 
(and  of  the  umpire  mutually  chosen — Pa.),  the  judge  shall 
forthwith  issue  the  license  authorizing  the  existence  of 
such  tribunal,  and  fixing  the  time  and  place  for  the  first 
meeting  thereof,  which  shall  be  made  a  record  in  such  judge's 
court.  (Pa.,  ib.,  70 ;  lo.,  ib.,  3 ;  Kan.,  ib.,  3.)  If  the  petition 
be  signed  by  the  requisite  number  of  either  party,  but  not  by 
both,  the  judge  issues  his  license,  conditioned  upon  the  as- 
sent of  the  necessary  number  of  that  side  which  has  not 
signed  the  petition,  which  assent  shall  be  in  writing,  and  con- 
tain the  names  of  the  members  of  the  tribunal  and  the  um- 
pire. But  if  no  such  assent  is  obtained  within  sixty  days 
from  the  date  of  the  conditional  license,  the  petition  is  dis- 
missed.    (Pa.,  lb.,  71.) 

One  such  tribunal  may  be  created  for  each  trade  above 
named  in  each  judicial  district.  They  shall  continue  in  ex- 
istence for  one  year  from  date  of  the  license,  and  may  take 
jurisdiction  of  any  dispute  between  employers  and  workmen 
who  shall  have  petitioned  for  the  tribunal,  or  have  been  rep- 
resented in  the  petition  therefor,  or  who  may  submit  their 
disputes  in  writing  to  such  tribunal  for  its  decision.  Vacan- 
cies occurring  shall  be  filled  by  the  judge  out  of  the  three 
names  presented  to  him  by  the  members  of  the  tribunal  re- 
maining of  that  class  in  which  the  vacancies  occur.  .  .  . 
Disputes  occurring  in  one  county  may  be  referred  to  a  tri- 
bunal already  existing  in  an  adjoining  county.  The  place 
of  umpire  shall  only  be  filled  by  the  mutual  choice  of  the 
whole  of  the  representatives  of  both  employers  and  workmen 
constituting  the  tribunal,  and  the  umpire  is  only  called  upon 
to  act  after  the  disagreement  in  the  tribunal  by  failure  during 
three  meetings  held  and  full  discussion  had.  His  award  is  final 
and  conclusive  upon  such  matters  only  as  are  submitted  to 


OF   THE   UNITED   STATES  357 

Izations  are  opposed.  The  main  function  of  the 
state   board    is    to    advise    and    direct   public 

him  in  writing  and  signed  by  the  whole  of  the  members  of  the 
tribunal,  or  by  parties  submitting  the  same  (Pa.,  VS.,  72;  lo., 
i7).,  4;  Kan.,  335),  and  upon  questions  affecting  the  prices 
of  labor.  It  shall  in  no  case  be  binding  upon  either  employer 
or  workman,  save  as  they  may  acquiesce  or  concur  therein 
after  such  award.     (Pa.,  ib.^  72.) 

The  tribunal  must  not  consist  of  less  than  two  employers, 
or  their  representatives,  and  two  workmen.  The  exact  num- 
ber is  always  inserted  in  the  petition  or  agreement.  They 
appoint  a  chairman  and  secretary  by  a  majority,  or  by  lot, 
as  they  prefer.  They  receive  no  compensation  (§2  a 
day  in  Kansas.)  The  umpire  has  authority  to  procure  wit- 
nesses, etc.  Attorneys  at  law  may  not  (in  Pennsylvania  and 
Iowa)  appear  or  take  part  in  any  of  the  proceedings.  (Pa., 
i'fi.,  73,  75  ;  lo.,  t6.,  5-7  ;  Kan.,  334,  336,  337.)  Before  the  um- 
pire shall  proceed  to  act,  the  questions  in  dispute  shall  be  de- 
fined in  writing  and  signed  bj'  the  members  of  the  tribunal,  or 
a  majority  of  each  class  thereof,  or  the  parties  submitting  the 
same,  and  such  writing  shall  contain  the  submission  of  the 
decision  to  the  umpire  by  name,  and  provide  that  it  shall  be 
final.  The  umpire  is  sworn,  and  must  make  his  award  within 
five  or  ten  days,  which  award  may  be  made  a  matter  of  rec- 
ord in  the  court,  and  judgment  be  entered  thereon.  (Pa.,  t6., 
75  and  76;  lo.,  ib.^  9;  Kan.,  340.) 

(4)  In  Colorado  and  North  Dakota :  If  any  difference  shall 
arise  between  any  corporation,  or  person,  employing  twenty- 
five  or  more  employees,  threatening  to  result,  or  resulting, 
in  a  strike  on  the  part  of  such  employees,  or  a  lockout  on  the 
part  of  such  employer,  it  shall  be  the  duty  of  the  commis- 
sioner, when  requested  so  to  do  by  fifteen  or  more  of  said 
employees,  or  by  the  employers,  to  visit  the  place  of  such 
disturbance,  and  diligently  seek  to  mediate  between  such  em- 
ployer and  employees.    Col.,  1887,  62,  9;  N.  D.,  1890,  46,  7. 

(5)  In  Missouri :   If   a   mediation  cannot  be   effected,  the 


358         HANDBOOK    TO   THE    LABOR   LAW 

opinion ;  for  actual  arbitration,  local  or  private 
(see  §  68),  or  still  better,  voluntar}-  boards,  created 
for  each  emergency,  are  best. 

commissioner  may  at  his  discretion  direct  the  formation  of  a 
board  of  arbitration,  to  be  comi)osed  of  two  employers  and 
two  employees  engaged  in  a  similar  occupation  to  the  one  in 
which  the  dispute  exists,  but  who  are  not  parties  to  the  dis- 
pute, and  the  commissioner  of  labor  statistics  and  inspection, 
who  shall  be  president  of  the  board.  The  board  shall  have 
power  to  summon  and  examine  witnesses,  and  hear  the  mat- 
ter in  dispute,  and,  within  three  days  after  the  investigation, 
render  a  decision  thereon,  which  shall  be  published,  a  copy  of 
which  shall  be  furnished  each  party  in  dispute,  and  shall  be 
final,  unless  objections  are  made  by  either  party  within  five 
days  thereafter:  Provided^  that  the  only  effect  of  the  investi- 
gation herein  provided  for  shall  be  to  give  the  facts  leading 
to  such  dispute  to  the  public  through  an  unbiased  channel. 

In  no  case  shall  a  board  of  arbitration  be  formed  when 
work  has  been  discontinued,  either  by  action  of  the  employer 
or  the  employees ;  should,  however,  a  lockout  or  strike  have 
occurred  before  the  commissioner  of  labor  statistics  could  be 
notified,  he  may  order  the  formation  of  a  board  of  arbitration 
upon  the  resumption  of  work.     Mo.,  6355-6358. 

(6)  Idaho  and  Wyoming  have  constitutional  provisions. 
Thus,  "  the  legislature  may  establish  boards  of  arbitration, 
whose  duty  it  shall  be  to  hear  and  determine  all  differences 
and  controversies  between  laborers  and  their  employers  which 
may  be  submitted  to  them  in  writing  by  all  the  parties.  Such 
boards  of  arbitration  shall  possess  all  the  powers  and  author- 
ity', in  respect  to  administering  oaths,  subpoenaing  witnesses, 
and  compelling  their  attendance,  preserving  order  during  the 
sittings  of  the  board,  punishing  for  contempt,  and  requiring 
the  production  of  papers  and  writings,  and  all  other  powers 
and  privileges,  in  their  nature  applicable,  conferred  by  law 
on  justices  of  the  peace."     Ida.  Const.,  Art.  13,  7. 

"  The  legislature  shall  establish  courts  of  arbitration,  whose 


OF   THE    UNITED    STATES  359 

§  68.  Creation  of  Private  Boards  of  Arbitra- 
tion.— (For  state  boards  of  arbitration  see  §  67.) 
In  a  few  states  statutes  have  already  been  passed 
providing  for  tlie  creation  of  private  boards  of 
arbitration  to  settle  differences  between  employ- 
ers and  employees.    They  are  appointed,  usually, 

(1)  One  by  the  employees,  or  a  labor  union 
(if  represented,  in  New  York),  one  by  the  em- 
ployers, and  they  to  choose  a  third.  ^ 

(2)  By  any  judge  or  justice  of  the  peace.'^ 

(3)  Five  arbitrators,  by  mutual  consent,  two 
by  the  employees  or  their  labor  organizations, 
two  by  the  employers,  the  four  to  choose  a  chair- 
man, or  the  district  court  if  they  fail  to  agree.^ 

(4)  They  consist,  in  Maryland,  of  not  less  than 
two  nor  more  than  four,  one  half  from  each  side, 
and  the  judge,  etc.,  appointing  them.  Such 
board  must  further  be  approved  by  the  county 
judge.  ^ 


duty  it  shall  be  to  hear  and  determine  all  differences  and 
controversies  between  organizations  or  associations  of  labor- 
ers and  their  employers,  which  shall  be  submitted  to  them  in 
such  manner  as  the  legislature  may  provide. 

"Appeals  from  decisions  of  compulsory  boards  of  arbitra- 
tion shall  be  allowed  to  the  Supreme  Court  of  the  state,  and 
the  manuer  of  taking  such  appeals  shall  be  prescribed  by  law." 
Wy.  Const.,  19,  2;  5,  30. 

'N.  Y.,  1887,  63,  1;  O.,  1893,  p.  85,  10;  N.  J.,  1892, 
137,  1 ;  Cal.,  1891,  81,  1 ;  Con.  Pol.  C,  3337. 

"Md.,  73. 

» Tex.,  1895,  61,  1 ;  N.  J.,  1892,  137,  1.  *  N.  J.,  Tex 


;iOO  HANDBOOK    TO    TIIK    LABOR    LAW 

(5)  The  jiarties  to  any  controversy,  as  pro- 
vided in  Section  3  of  the  act  (see  §  67)  may  agree 
upon  a  board  of  arbitration,  who  shall  have  all 
the  powers  which  the  state  board  has,  and  their 
jurisdiction  is  exclusive,  except  that  they  may 
ask  advice  from  the  state  board.  Their  report 
shall  be  filed  with  the  city  or  town  clerk,  and  a 
copy  forwarded  to  the  state  board.^ 

The  grievance  or  matter  of  dispute  must  be 
stated  in  writing,  and  signed  by  the  parties  to 
the  arbitration." 

Pending  arbitration,  the  existing  status  must 
not  be  changed.' 

The  arbitrators  shall  sign  a  consent  to  act,  and 
shall  be  sworn,  shall  elect  a  secretary,  and  give 
notice  of  the  time  and  place  of  hearing." 

The  chairman  of  the  arbitrators  has  power  to 
administer  oaths,  and  issue  subpoenas  for  the 
production  of  books  and  papers,  and  for  the 
attendance  of  witnesses  to  the  same  extent  as 
courts  of  record.^ 

After  the  matter  has  been  fully  heard,  the 
arbitrators,  or  a  majority  of  them^  shall,  within 
ten  days,  render  a  written  decision,  giving  such 

*Mass.,  1886,  263,  7;  O.,  1893,  p.  85,10-11;  Mon.  Pol.  C, 
3337-8;  Wis.,  1895,  364,  7;  CaL,  1891,  51. 
•  N.  Y.,  N.  J.,  ib.,  2 ;  Tex.,  ib.,  4. 
■>  Tex.,  ib.,  4. 

8  N.  Y.,  ib.,  2 ;  N.  J.,  ib.,  8  ;  Tex.,  ib.,  5. 
•N.  Y.,  N.  J.,  ib.,  3;  Tex.  ib.,  6. 


OF   THE    UNITED   STATES  361 

details  as  will  clearly  show  the  nature  of  the 
decision  and  the  points  disposed  of.^" 

And  thereupon  the  powers  of  such  board  cease 
unless  similar  grievances  between  the  same 
classes  of  persons  then  exist  and  are  referred 
to  it.ii 

Such  decision  is  a  settlement  of  the  matter 
referred/^  unless  an  appeal  is  taken  within  ten 
days  to  the  state  board  of  arbitration.'^  The 
court  may,  in  Texas,  enforce  it  in  equity. 

But  in  all  cases,  if  the  parties  mutually  agree 
that  the  dispute  shall  be  arbitrated  in  a  mode 
different  from  that  herein  described,  such  agree- 
ment is  valid,  and  the  award  by  either  mode  of 
arbitration  is  final  and  conclusive.'^ 

The  determination  of  the  dispute,  as  above 
provided,  is  given  as  a  judgment  of  the  court 
over  which  the  judge  or  justice  who  is  a  member 
of  the  arbitration  presides,  and  execution  fol- 
lows.'^ 


"N.  Y.,  t6.,  3;   N.  J.,  t6.,  4. 

"N.  Y.,  t6.,  4;    N.  J.,  li.,  5;   Tex.,  t6.,  7. 

""N.  Y.,  N.  J.,  Tex.  i6.,  4. 

"N.  Y.,  t6.,  6;   N.  J.,  t6.,  4  and  7. 

>^Md.,  ib.,  4. 

'*  Md.,  ti.,  6.  "  During  the  pendency  of  arbitration  under 
this  act  it  shall  not  be  lawful  for  the  employer  or  receiver 
party  to  such  arbitration,  nor  his  agent,  to  discharge  the 
employees  parties  thereto,  except  for  inefficiency,  violation  of 
law,  or  neglect  of  duty,  or  where  reduction  of  force  is  neces- 
sary, nor  for  the  organization  representing  such  employees  to 


362         IIAXDHOOK    TO    TIIK    LABOR   LAW 

§  69.  State  Labor  Bureaus  or  Commissioners. — 
There  is  in  luuiiy  states  also  a  bureau  of  labor 
statistics,  or  a  com uiissi oner  or  officer  whose 
duty  shall  be  to  collect  industrial  statistics  for 
the  state.  ^ 

In  Nebraska  the  governor  is  made  such  com- 
missioner, and  in  Washington  the  secretary  of 
state,^ 


anite  in,  aid,  or  abet  strikes  or  boycotts  against  such  employer 
or  receiver."     Texas,  ib.,  7,  8. 

"  At  the  expiration  of  ten  days  from  the  decision  of  the 
district  court  upon  exceptions  taken  to  said  award  as  afore- 
said, judgment  shall  be  entered  in  accordance  with  said 
decision,  unless  during  the  said  ten  days  either  party  shall 
appeal  therefrom  to  the  Court  of  Civil  Appeals  holding  juris- 
diction thereof.  In  such  case  only  such  portion  of  the  record 
shall  be  transmitted  to  the  appellate  court  as  is  necessary  to 
the  proper  understanding  and  consideration  of  the  questions 
of  law  presented  by  said  exceptions  and  to  be  decided.  The 
determination  of  said  Court  of  Civil  Appeals  upon  said 
questions  shall  be  final,  and  being  certified  by  the  clerk  of 
said  Court  of  Civil  Appeals,  judgment  pursuant  thereto  shall 
thereupon  be  entered  by  said  district  court."    Texas,  ib.,  IL 

•  N.  H.,  1893,  48;  Ky.,  1893,  16:  Me.,  1887,69;  R.  I., 
1887,621;  Ct.,  2944;  X.  Y.,  1883,  356 ;  Mass.,  31,  13;  Pa. 
Dig.,  p.  1907;  Md.,  89,  1;  O.,  Vol.  87,  p.  150;  Ind., 
7758;  111.,  79  a,  1,  2;  Mich.,  1883,  156:  1891,  68;  Wis., 
1021b;  Minn.,  1887,  115;  lo.,  2439;  Kan.,  5963;  Neb., 
39  b,  1;  W.  Va.,  1889,  15;  N.  C,  1887,  113;  Tenn.,  299, 
1891,  157;  Mo.,  8215;  Cal.,  1889,  6,  Sup.,  p.  543;  Col., 
1887,  p.  62;  1893,  37;  Ida.  Const.,  13,  1;  Wash.  Const., 
2,  34;  1895,  85;  Utah,  1890,  43,  6;  N.  D.,  123-126;  S.  D., 
1890,  33;  Mon.  Const.,  18,  1;  Pol.  C,  760. 

'Neb.,  39  b,  1:  Wash.,  1895,  85. 


OP   THE   UNITED   STATES  363 

The  commissioner  of  immigration,  labor,  and 
statistics  shall  perform  such  duties  and  receive 
such  compensation  as  may  be  prescribed  by 
law.  ^ 

It  is  the  duty  of  the  bureau  of  labor  statistics, 
or  labor  commissioner,  also  to  keep  advised  gen- 
erally on  the  protective  industries  of  the  state, 
make  an  annual  report  to  the  governor,  etc.,  and 
to  inquire  into  the  causes  of  strikes,  lockups,  or 
other  disturbances  of  the  relations  between  em- 
ployers and  employees/ 

The  commissioner  is  generally  given  full  ac- 
cess to  all  factories  or  workshops,  mines,  or 
other  pieces  where  workmen  are  employed.^ 

The  commissioner  is  generally  given  power 
to  "  send  for  persons  and  papers "  or  to  take 
and  preserve  evidence  and  examine  witnesses 
under  oath.^ 

A  commission  or  bureau  on  the  unemployed 
has  also  been  created  in  Massachusetts.^  And 
in  some  states,  frfee  state  bureaus  of  employment 
(see  §  47). 

3  Ida.  Const.,  Art.  13,  8. 

■•  Mich.,  Me.,  Ind.,  Minn.,  lo.,  Kan.,  Neb.,  N.  C,  Mo., 
Col.,  Cal.,  Ida.,  Utah,  N.  D.,  S.  D.,  Mon. 

«  Me.,  N.  Y.,  Mich.,  Wis.,  Minn.,  Kan.,  Neb.,  Tenn., 
W.  Va.,  Mo.,  Cal.,  Col.,  Mon.,  N.  D.,  S.  D. 

•  Me. ;  Mass.,  31,  14 ;  Pa. ;  N.  Y. ;  Ind. ;  Mich. ;  O.,  309 ; 
Wis.;  Minn.;  lo.,  2444;  Neb.;  Kan.;  Tenn.;  W.  Va. ; 
Mo. ;  Cal. ;  Col. ;  N.  D. ;  S.  D. ;  Mon. 

'  Mass.,  1894,  238 ;  compare  Utah,  1894,  10. 


364        HANDBOOK    TO   THE   LABOR   LAW 

The  powers  of  such  boards  are  purely  investi- 
gatory. There  is  as  yet  no  effort  by  law  for  cre- 
ating a  permanent  state  organism  with  the  func- 
tion of  artificially  creating  a  demand  for  labor. 
See  §  70. 

§  70.  State  Aid  to  the  Unemployed — Legisla- 
tion with  the  aim  of  giving  direct  aid  or  em- 
ployment by  or  through  the  agency  of  the  state, 
being  in  its  nature  purely  socialistic,  has  not  yet 
been  attempted  by  any  of  om*  states.  Massa- 
chusetts, by  a  law  of  1894  ^  appointed  a  com- 
mission on  the  unemployed,  with  large  powers  of 
inquiry  and  investigation  and  a  substantial  ap- 
propriation ;  and  among  their  recommendations 
was  one  that  cities  or  other  municipal  corpora- 
tions should  anticipate  public  work  in  times  of 
distress.  The  nearest  statute  to  direct  appro- 
priation that  we  find  is  that  of  Utah  (1894,  Ch. 
10),  which  was  called  "  An  Act  to  aid  needy 
laborers,"  and  appropriated  $^,000  to  be  spent 
by  a  board  of  relief  specially  appointed  for  that 
appropriation  in  labor  on  capitol  grounds.  This 
sum  was  expended,  as  appears  by  a  later  act  of 
the  same  year  (Ch.  82),  which  ordered  that  such 
$2,000  should  be  paid  by  the  state  treasurer 
"  without  regard  to  other  warrants  registered 
in  advance ; "  that  is,  a  preference  was  given  to 

»  Mass.,  1894,  238. 


OF   THE   UNITED   STATES  365 

this  debt  over  all  other  debts  of  the  state.  Al- 
though the  amount  was  small,  the  principle  was 
a  dangerous  one  and  not  likely  to  be  followed 
in  the  older  states.  The  principles  of  state  so- 
cialism have  not  yet  been  applied  in  the  law  of 
any  American  state,  unless  it  be  in  the  South 
Carolina  liquor  statute,  which,  giving  the  state  a 
monopoly  of  tliat  business,  "  nationalizing  "  the 
liquor  traffic,  was  for  that  reason  declared  un- 
constitutional by  the  Supreme  Court  of  that 
state.  ^ 

"  McCullough  V.  Brown,  41  S.  C,  220  (see  §  2).  This  de- 
cision was  afterward  differed  from  in  a  later  case,  the  court 
having  been  in  the  meantime  reconstituted  (State  v.  Aiken, 
42  S.  C,  223^,  but  only  on  the  ground  of  police  regulation 

(see  §  4). 


INDEX 


A 

Abducting  children  out  of  State,  64. 

Accidents  to  employees,  to  be  reported,  150. 

Acts  of  Parliament,  omnipotent  (see  Statutes),  2. 

Adulteration,  laws  against,  22. 

Age  of  employment  of  children  (see  Children). 

Agricultural  labor  (see  Farm  Labor),  exempted  from  laws 

against  trusts,   187. 
Alien  labor,  employment  of,  forbidden,  119,  123. 
American  colonists,  inherited  knights  of,  3. 
Anarchist  combinations,  necessarily  criminal  in  Illinois,  197. 
Anti-truck   acts,  anti-trust    laws,  etc.    (see    Truck,    Triists^ 

etc.). 
Apprenticeships,  17,  138,  139. 
Arbitrary   power,   exists    in    no   government  (see     Natural 

Rights,  etc.),  11,  note. 
Arbitrary  statutes,  benefiting  or  injuring  special  persons  or 

classes,  etc.,  void,  5. 
Arbitration,  State  Boards  for,  created,  348,  362. 

private  or  local  boards  established  by  law,  359,  361. 

State  Boards  may  hear  appeals  from  local,  354,  note. 

Assignment  of  debts  to   persons  out  of  State,  forbidden  in 

Wyoming,  12G. 
Assignments  of  wages  must  be  recorded,  etc.,  125. 
Attachment,  no  property  exempt  from  for  labor  debts,  126, 

127. 
may  not  be  made  unless  wage  debts  settled,  129. 
of  wages,  forbidden  or  limited,  124,  125. 


368  INDEX 

Attorney8-at-law,  may  not  buy  promissory  notes,  14. 
special  fees  allowed  in  labor  cases,  133. 


Begging  (see  Children). 

Bells  and  whistles  rung  in  cities  for  convenience  of   oper- 
atives, 149. 
Benefit  societies,  money  due  from,  not  attachable,  132. 
Bill  of  Rights,  in  State  Constitutions,  5,  7-15. 
Blacklisting,  cases  of,  37,  300,  301. 

statutes  forbidding,  301,  302. 
Blackstone,  on  rights  of  American  settlers,   natural    rights, 

etc.,  3,  15. 
Bodies   of  coal  miners,    may   be   recovered  by  mandamus, 

150. 
Bond  for  costs,  not  required  in  labor  suits,  etc.,  133. 
Bonds  from  employees,  exaction  of  regulated,  in  New  Mex- 
ico, 113. 
Boycott,  Captain's  case,  224. 
Boycotts,  Boycotting,  175,  222,  289. 

are  generally  unlawful,  223. 

subject  offenders  to  damages,  injunction,  and  criminal 
process,  224,  310-312. 

examples  of,  225-289. 

Parnell's  case,  242,  note. 

by  producers  or  employers  of  each  other,  266,  267, 

see  Restraint  of  Trade. 

American  statutes  relating  to,  283-289,  303,  304, 
Brickyards,  labor  in,  69. 
Breach  of  labor  contract,  forbidden,  33,  34. 

enticement  to,  unlawful,  28,  note. 
British  Constitution,  1-3. 
Building  laws,  subject  to  police  power,  21. 
Business,  right  to  engage  in,  etc.,  13. 

unlawful  for  employees  to  coerce  alteration  in,  24. 
By-laws,  municipal,  must  be  reasonable,  etc.,  41, 


INDEX  369 


Cattle,  killing  by  railways,  laws  against,  14-. 
Certificates  of  child's  age  in  factories,  62. 

health  of  children,  77. 
Checks,  wages  may  be  paid  by,  103. 
Charitable  Funds  (see  Relief  Societies)^  114,  116. 
Child  labor,   forbidden  generally  (see  Factories^  Hours    of 

Lahoi\  Children)^  61-63. 
Children  (see  Hours  of  Labor),  general  laws  regulating  labor 
of,  63,  64. 
general  laws  regulating  labor  of,  are  constitutional,  64. 
employment  of,  in  begging,  circuses,  etc.,  77,  78. 
further  statutory  restrictions  upon  employment  of,  76- 

78. 
hours  of  labor  of,  in  factories,  etc. ,  58-64. 
hours  of  labor  in  special  occupations,  71-72. 
labor  of,  not  to  interfere  with  education,  etc.,  61-63,  73. 
Chinese,  Mongolians,  etc.,  employment  of,  forbidden,  119- 

121. 
Cities  and  towns,  may  fix  price  of  public  labor,  40,  41. 
hours  of  labor  for,  fixed  by  law,  52-55. 
may  not   fix  price  of    labor    when  charter  delimitates 

hours,  42. 
may  hire  by  the  day  only,  in  California,  42. 
Citizens  of  the  several  States,  entitled  to  all  privileges,  etc., 

11. 
Civil  Service  Laws,  soldiers,  etc.,  exempt  from,  123. 
Class  legislation,  meaning  of,  etc.,  13,  14,  44,  47,  50,  51,  70, 
90-93. 
in  case  of  eight-hour  laws,  44,  47-48. 
in  case  of  truck  laws,  106. 
true  principle  of,  49,  50. 
Coal  mines,  raining,  etc.  (see  Mines,  Screen  Laws,  etc.),  25, 

110,  111. 
"  Collective  bargaining,"  100,  101. 

34 


370  INDEX 

Combinations   (eee    Conspiracies,    Trade   Unions,  etc.),  231, 
232. 

to  strike  (see  Conspiracy),  35,  236,  note,  252,  256. 
Commerce  (see  Interstate  Commerce). 
Commissioner  of  labor,  created  in  many  States,  3G2. 
Company  stores  not  to  be  kept,  or  wages   paid  by   orders, 
credits,  etc.,  13,  107-110. 

physicians,  forbidden  in  Tennessee,  116. 
Conscience,  rights  of  (see  Natural  Rights). 
Conspiracies  in  restraint  of  trade  (see   Trusts,  Restraint  of 

Trade),  178-180,  186,  190-192. 
Conspiracy,  what  is,  in  labor  disputes,  23,  174,  176-180,  195- 
220,  228-289,  345. 

to  control  employer  or  third  persons,  unlawful,  175,  208- 
216,  225,  226,  239,  note,  240,  249. 

to  fix  rate  of  wages  now  lawful,  189. 
Constables,  special,   employment  of,  forbidden  in  Missouri, 

etc.,  305-309. 
Constitution,  State  (see  State  Constitutions'),  3,  5,  10. 

United  States  or  Federal  (see   U.  S.  Constitution),  11, 
12-15. 

unwritten  or  implied,  1-10,  70,  note. 
Constitutional  law  (eee  also  several  titles),  1-22. 

as  to  fixing  hours  of  labor,43-73. 

as  to  fixing  hours  of  public  labor,  52-55. 

as  to  fixing  hours  of  special  occupations,  69-71. 

as  to  fixing  rate  of  wages,  40-43. 

as  to  fixing  time  of  wage  payments,  88-96. 

as  to  special  occupations,  69-71. 

as  to  laws  giving  labor  special  privileges,  130. 

concerning  labor  of  minors,  64. 

concerning  labor  of  minors  in  special  occupations,  69-71- 

concerning  labor  of  women,  43,  51,  64,  65. 

concerning  sweatshops,  153. 

concerning  truck  acts,  101-105,  108,  109. 
Conciliation,  Boards  of  (see  Arbitration). 
Contempt,  interference  with  receiver  is,  205,  313,  326, 


INDEX  371 

Contempt  process  (see  Equity)^  no  appeal  from,  nor  jury  trial, 
313-315. 
sentences  for,  in  actual  cases,  328-331. 
Contract,  freedom  of  (see  Employmetii  Contract)^  1-15. 
by  express  constitutional  revisions,  10-15. 
some  may  be  prohibited  by  statute,  2,  3,  6,  7,  13,  165. 
Control  of  employer  by  employees  (see  Conspiracy,  Intimi- 
dation), 23,  24. 
"  Contracting  out "  of  masters'  liability,  forbidden,  etc.,  162- 

166. 
Convict  labor,  regulated  by  statute,  133-139. 
may  not  be  hired  out,  etc.,  135,  136. 
no  contracts  may  be  made  for,  135,  136. 
to  be  regulated  so  as  not  to  compete  with  outside  indus- 
tries, etc.,  137,  138. 
Co-operative  associations,  140,  141. 

Corporations,  special  statutes  applying  to,  71,  84,  87,  88,  90, 
92,  95,  102. 
stockholders  personally  liable  for  labor  debts,  etc.,  130, 131. 
Cotton  and  woollen  manufactories,  hours  of  labor  in,  56,  66, 
67,  note,  72. 
must  give  employees  tickets  with  each  warp,  etc.,  85. 
Courts,  powers  of,  to  set  aside  statutes,  5,  20. 
Crimes  and  criminal  offences  in  labor  disputes  (see  Conspir- 
acy,  Intimidation,  etc.),  23. 
by  employing  overtime,  53,  note, 
by  employing  child  labor,  58-64. 
by  breach  of  employment-contract  act,  34. 
by  breach  of  employment-contract  act  may  lie  in  some 
States,  113. 
Croppers,  labor  upon  shares,  etc.,  113. 
Customers,  intimidation  of,  unlawful,  172. 

D 

Damage  to  materials,  tools,  etc.,  by  employees,  13,  86. 
Damages,  employees  liable  to,  in  case  of  breach  of  contract,  34. 


372  indp:x 

Damages  recoverable  for  intiniiilation,  etc  ,  23. 

employer  liable   to  when    employee   is   improperly  dis- 
charged, '66. 
Dangerous  occupations,  children  not  to  be  employed  in,  76. 
Day,  labor  by  the,  eight-hour  laws  apply  to  only,  46. 
Day's  labor  (see  Hours  of  Labor),  from  sunrise  to  sunset,  in 

Georgia,  56. 
Death  of  employee,  actions  for  damages  against  employer, 

163-166. 
Discharge  of  employees,  35-38. 
not  to  be  for  voting,  etc.,  117. 
reasons  to  be  furnished,  etc.,  37. 
when  justifiable,  37. 
by  corporations,  railroads,  etc.,  37. 
for  fault  of  employee,  etc.,  161. 
Domestic  labor,  14,  36,  50. 

eight-hour  laws  do  not  apply  to,  46,  note,  47,  49. 
Drainage  laws,  allowable  under  police  power,  21. 
Due    process    of   law    (see   Law  of  the  Land,   Fourteenth 
Amendment),  5,  note,  12,  93. 
phrase  is  sometimes  expressive  of  the  "  Unwritten  Con- 
stitution," 5. 
Dust  in  factories,  law  requiring  removal,  etc.,  147. 


E 

Education,  labor  laws  having  regard  to,  61,  63,  72,  73,  138, 

139. 
Eight-hour  laws  (see  Hours  of  Labor),  14,  43-53. 

of  some  states  held  unconstitutional,  43-45. 

some  of  these  decisions  criticised,  49-51, 
Election  day,  a  holiday,  time  for  voting,  etc.,  118,  119. 
Elections,  interference  with  by  employers  forbidden,  117-119. 
Elevators,  running  by  children,  regulated,  76,  77,  147. 
Employees,  associations,  etc.,  140,  148. 

discharge  of,  by  employer,  35-38. 


INDEX  373 

Employees,  duties  of,  38,  39. 

notice  of  discharge,  of  quitting  work,  22,  38,  39. 
Employers,  combinations   of  (see    Conspiracy,  Restraint  of 

Trade),  18.",,  193,  222,  275,  283,  344,  347. 
Employment  agencies  (see  Intelligence  Office,  Labor  Bureau). 
Employment  contract,  the,  15,  19,  35,  51. 

breach  of,  persuading  to  make,  27,  28,  31. 

breach  of,  not  criminal,  34. 

breach  of,  may  give  claim  for  damages,  38. 

breach  of,  summary  remedy  in  England,  34. 

defined  by  Western  codes,  etc.,  18,  note,  33. 

freedom  of,  under  the  Constitution,  15-18,  21,  46. 

freedom  of,  is  a  property  right,  15,  95-97. 

enforcement  of,  29. 

enforcement  of,  not  in  equity,  29. 

interference    with     (see    Intimidation),    is    forbidden, 
22-34. 

termination  by  the  employer,  35-38. 
Employment,  freedom  to  obtain,  etc.,  25. 

long-time  contracts  not  legal,  38. 
Enticement  of  laborers,  etc.,  26,  note. 

Enumeration  of  rights  in  Constitutions,  not  exclusive,  8,  12. 
Equity  rights,  process,  jurisdiction,  etc.   (see  Contempt,  In- 
junctions), 7,  note,  31-33,  310,  326. 

jurisdiction  enlarged  by  anti-trust  act,  344. 
Ex  post  facto  laws,  of  municipal  ordinances,  void,  41. 
Exclusive  privileges,  etc.  (see  Class  Legislation). 
Extra  pay  (see  Overtime). 


Factories  and  workshops  (see  Hours  of  Labor,  etc.),  143-151. 
what  are  (see  Sweatshops),  60,  149,  150. 
child  labor  in,  58-64,  72. 
cotton  and  woollen,  special  laws,  56. 
eight-hour    law    in,    held    unconstitutional    in    Illinois, 
etc.,  47. 


374  INDEX 

Factories,  hours  of  labor  in,  14,  21,  55-73. 

laws  regulating  labor  in,  not  class  legislation,  50. 

time  of  wage  payments  in,  87. 
Farm  labor,  14,  2(J,  2S,  notes,  50,  102. 

eight-hour  law  does  not  apply  to,  46,  47,  49. 
Farmers' Alliance,  statutes  authorizing  incorporation,  169-171. 
Federal  Constitution  (see  United  States). 
Fellow-servants,  doctrine  of,  abolished  or  modified,  164,  165. 
Fines  by  employers,   forbidden,    law  held   unconstitutional, 

etc.,  6,  7,  note,  13,  81-86,  100,  235,  251. 
Fourteenth   Amendment   to   United   States  Constitution,  12, 

91-93. 
Franklin,    Benjamin,  on  constitutional  rights  of  American 

Colonists,  3. 
Free  government,  principles  of,  4. 
Freedom  of  contract  (see  Employment  Contract). 

principle  limited  by  police  power  of,  1-15,  84. 

legislatures,  19-22. 

principle  violated  by  eight-hour  law,  etc.,  43-49,  Si- 
Fraud,  laws  regulating  contracts,  to  prevent,  22. 
Frogs,  on  railways,  to  be  blocked,  etc.,  148 

G 

General  laws,  where  applicable,  no  special  to  be  passed,  48. 

Gladstone,  W.  E.,  on  conspiracy  law,  219. 

Government,  rights  and  powers  of,  4,  11,  notes. 

"  Government  by  injunction  "  (see  Equity,  etc.),  31-33. 

"  Granger  Laws,"  21. 

Grand  Army  of  the  Eepublic,  preference  of  soldiers,  etc., 

in  public  employment,  123,  124. 
Guards  before  bridges  on  railways  required,  148. 

H 

Health  laws,  under  police  power,  etc.,  21. 

occupations  dangerous  to,  children  not  to  be  employed, 

76,  77. 


INDEX  375 

Highway  labor,  taxes  to    be    expended  within  township,  in 

Michigan,  42,  43. 
Holidays  (see  Sunday  Laws),  81. 
Hours  of  labor  (see  Eight-Ffour  Laws,  etc.),  43-73. 

statutes  concerning,  12-14,  17. 

of  adults  may  not  be  fixed  by  law,  13,  43,  44. 

may  be  defined  by  law  in  absence  of  express  contract,  45, 
47,  51,  52. 

may  be  implied  from  wage,  45,  46,  51. 

in  special  occupations,  65-73. 

of  women  and  children,  55-73. 

less  than  full  day  may  be  accepted,  52. 

agreements  for  more  than  ten  hours  must  be  in  writing, 
in  Florida,  45. 

fixed  by  United  States  statute,  53. 

general  table  of,  for  all  States,  74-75. 


Immoral  contracts  (see  Freedom  of  Contract) . 

Immoral  occupations,  children  not  to  be  employed,  77. 

Imperfect  work,  fines  for  (see  Fines  by  Employers). 

Inalienable  rights  (see  Natural  Rights). 

Industrial  education,  138,  139. 

Industrial  occupations  (see  Factories,  etc.). 

Injunctions  (see  Equity),  205,  310-326. 

against  unions  from  enticing  workmen  to  leave,    183, 
317. 

against  picketing,  intimidation,  etc.,  317,  319,  321-324. 

against  strikes,  boycotts,  etc.,  324,  326-334. 

against  interfering  with  interstate  commerce,  321,  334- 
343. 

against  railways  for  refusing  traffic,  320. 

against  employees  from  working  for  others,  30. 

in  favor  of  receivers,  326-334. 

requiring  employees  to  perform  service,  32. 


376  INDEX 

Injunctions,  partios  bound  bv,  notice,  etc.,  310-312,  324,  345. 
Injuries  to  persons,  etc.  (see  Inlimidaiion). 
Insolvencies,  preference  of  labor  debts  in,  128-130. 
Inspection  of  factories,  sweatsbops,  etc.  (see  those  titles). 
Insurance  policies  free  from  claims  of  creditors,  132. 
Insurrection,  what  is,  under  Federal  statutes,  345. 
Intelligence  offices,  laws  regulating,  etc.,  21,  153-155. 
Interference  with  laborers,  etc.,  22. 
Interstate  commerce,  268,  321. 

Act  of  1887,  31,  204,  2G8,  334-344. 
Intimidation,  interference  with  laborers,  etc.,  22-34,  215. 

statutes  prohibiting,  23-29,  173-174,  241,  270. 
Intoxicating  liquors  (see  Liquor  Laws),  150. 
Irish  Land  Acts,  2. 

K 

Kidnapping  children,  etc.,  64. 

Knights  of  Labor,  statutes  authorizing  incorporation  of,  169- 
171. 


Labor  (see  Hours  of  Labor,  Weekly  Payment  Laws,  Domestic 

Labor,  Farm  Labor,  Croppers,  Employment  Contract, 

Wages,  etc.). 
Bureaus,  State  (see  Commissio7iers  of  Labor). 
as  property,  15. 

claims  for  specially  protected,  22,  125-130. 
Day,  first  Monday  in  September,  81. 
liens,  22. 
local  or  special  laws  concerning,  forbidden  in  some  States, 

49. 
payment  of  (see  Wages),  13. 
payment  of,  not  in  goods  or  orders,  13,  101-110. 
unions  (see  Trades  Unions,  etc.). 
right  to,   guaranteed  by  the   Constitution,   15,  16,    18, 

note,  95-97. 


INDEX  377 

Laborers,  enticing  <5r  procuring  to  leave,  25. 
political  rights  of,  117-133. 
statute  of,  Hi. 
Land  Act,  of  Ireland,  2. 
Laws  (see  Statutes). 
Law  of  the  land  (see  Natural  Rights^  Due  Process  of  Law), 

5,  12,  94. 
Lectures,  free,  for  working-people,  139. 
Legislative  powers  of  Government,  7,  note. 
Legislative  powers  to  make  laws,  etc.,  7,  note,  9,  13-14  (see 

Police  Power.,  Statutes.,  Constitutional  Law,  etc.). 
Libel,  by  newspapers,  statutes  specially  regulating,  13. 

by  newspapers,  statutes  specially  unconstitutional,  etc., 

50,  note. 
Liberty  of  contract  (see  Freedom  of),  1-15,  51,  94. 
Lien  given  laborers  on  property  of  insolvent  companies,  128. 
Life,  liberty,  and  property  (see  Natural  Rights),  5,  9,   11, 

note,  12,  15,  94. 
Liquor  laws,  constitutional,  21. 

Liquor  shops,  employment  of  women  in,  forbidden,  79-80. 
employment  of  women  in,  whether  constitutional,  80. 
Living  wage,  the,  40-43. 
Local  or    special  laws,  forbidden  by    the  Constitutions   of 

many  States,  47,  48. 
interpretation  of  this  provision,  48,  49. 
Lockouts,  221,  222. 

Logging,  lumber  camps,  hours  of  labor  in,  66. 
Lotteries  (see  Prizes). 

M 

Machinery,  time  lost  by  repairing,  etc.,  58,  66,  note. 

cleaning  of,  by  children,  71,  76. 
Mails,  combinations  to  interfere  with,  criminal,  205. 
Maine  Constitution,  gives  Legislature  full  powers,  7,  note. 
Majority,  powers  of,  11,  note. 
Mandamus,  to  recover  membership  in  labor  union,  171. 


378  IXDEX 

Mamifaotiirinc:  ostalilishnionts  (see  Factories). 

lal)or,  liours  of.  ri'gulati'd  by  statute,  45-47 ;  G8. 
Massachusetts  Constitution,  excoptiunal  ])rovisions,  3,  4,  6, 

20. 
Master  and  servant  (see  Labor ^  Employment  Contract)^  etc. 

liability  of,  to  tliird  persons,  156. 

liability  of  master  to  servant,  161-164. 

liability  of  servant  to  master,  157-159. 
Meal  times,  must  be  allowed  in  factories,  56,  57. 
Mechanical  business  (see  Factories) . 
Mechanical  labor,  covered  b}-  eight-hour  laws,  45,  46. 
Mercantile  establishment,  hours  of  labor  in,  55,  note. 
Mills  (see  Factories). 
Mines  and  miners,  21,  87,  102,  148,  149. 
Mines,  laws  for  protection  of  employees,  etc.,  148,  149. 
Mining,  hours  of  labor  in,  67. 

hours  of  labor  law,  unconstitutional  in  Ohio,  70-71. 

hours  of  labor,  by  women  and  children,  71,  72. 
Minors   (see    Children).,   entitled   to  wages   free  of  parents' 

claims,  78. 
Misdemeanors  (see  Crimes). 

"  Molesting  and  Obstructing"  labor,  22-34,  236-242. 
Money,  wages  to  be  paid  in,  only  (see  Truck).,  107. 
Monopolies,  may  be  regulated  by  law,  21. 

combinations  to  control  necessaries  of  life  illegal,  187, 
190,  192. 
Monthly  hiring,  eight-hour  laws  do  not  apply  to,  46,  note. 
Mortgages  on   railroads,   etc.,  labor   debts    not   subject  to, 

129,  130. 
Municipal  corporations  (see  Cities  and  Towns). 
Municipal  by-laws,  must  be  reasonable,  etc.,  41,  42. 

N 

"  Nationalism  "  (see  Socialism). 

Natural  rights  (see  Personal  Liberty,  etc.),   4,  5,  8,   9,  15, 
70,  71,  228-231. 


INDEX  379 

Natural  rights  include  life,  liberty,  and  property,  0,  10,  12. 

right  of  contract  results  from,  10. 

involve  right  to  labor,  15. 

to  trade  or  business,  2,  13. 
Negligence  (see  Master-  and  Servant),  of  fellow-employees, 

163-166. 
New  Hampshire,  powers  of  Legislature  in,  7,  note. 
Newspaper  (see  Libel),   rights  of,  to  interfere   in  labor  dis- 
putes, 323,  332. 
Ninth  Amendment  (see  United  StaAes  Constitidion),  12. 
Non-union    employees,    laws   affecting    employment  of,   13, 
24,  181-183. 

statutes  discriminating  against,  unconstitutional,  50,  note. 

strikes  against,  unlawful,  213,  214,  265. 
Notice  of  discharge  by  employer  must  be  same,  etc.,  22,  98- 
101. 

of  discharge,  term  required,  36,  100. 

of  quitting  work,  in  personal  service,  39,  98-101. 
Noxious  trades,  may  be  regulated,  21. 
Nuisances,  laws  may  define,  21. 


O 


"  Obligation  of  contracts,"  meaning  of  phrase,  15. 

Oleomargarine,  laws  against,  22. 

Operatives  (see  Factories),  law  for  comfort  of,  etc.,  143-151. 

Ordinances  (see  By-Laws). 

Overtime,  for  extra  compensation,  etc.,  43,  47,  51,  52. 

exaction  of,  a  misdemeanor,  46. 

express  contracts  for,  46,  47,  52. 

express  contracts  not  necessary  where  usage,  etc.,  51. 

factory  contracts  fj»r,  56. 

factory  contracts  declared  void  in  Georgia,  etc.,  67,  note. 

Nebraska  statute  requiring  double  pay,  held  unconstitu- 
tional, 47. 

on  railroads,  69. 


380  IXDEX 


p 


Parliament,  powers  of,  as  to  legislation,  1,  2. 

Patrolling  (see  Picketing). 

Pay  envelopes   printed  with  political  arguments  forbidden, 

117,  118. 
Pedlars,  law  unconstitutional   limiting  licenses  for,  to  only 

lame  persons,  50,  note. 
Pennsylvania  Museum  and  School  of  Industrial  Art,  39. 
Perisiiahle  products,  hours  of  labor  in  manufacturing,  58. 
Personal  liberty  (see  Life,  etc.),  17,  20,  94,  226-235. 

compulsion  of  any  act  forbidden,  24. 
Personal  service,  contracts  for,  may  not  be  for  long  time, 

38,  39. 
Physicians,  dictation  as  to,  forbidden  employer,  in  Tennessee, 

116. 
Picketing,  cases  of,  257-259,  263,  290-300. 
Piece-work,  payment  for,  forbidden  in  mines,  110-111. 
'•  Pinkerton  Men,"  employment  of,  forbidden,  305-309. 
Police  power  of  Legislature  (see  Constitutional  Law),  14-22. 
power  is  not  above  the  Constitution,  20. 
power  is  subject  to  the  scrutiny  of  the  Courts,  20. 
Political  rights  of  laborers,  117-132. 
Preference  or  priority  of  wage  debts,  127-130. 
Prison  labor  (see  Convict  Labor),  regulated  by  statute,   133- 

139. 
Privacy,  right  to,  11. 

Prize  packages,  given  with  purchases,  etc.,  13. 
Profit-sharing  by  employees,  etc.,  144-145. 
Property,  constitutional  right  to,  9-10,  12. 

constitutional  right   to   contract   results   therefrom,   11, 
84,  94. 
Public  interest,  employments  affected  with,  may  be  regulated 

by  statute,  21. 
Public  labor,  changes  in,  21. 

prices  may  be  fixed  by  statute,  etc.,  40-41,  54. 


INDEX  381 

Public  labor  must  be  at  current  rates, ^a- diem,  in  Kansas,  43. 

laws   regulating   hours    of,    whether    constitutional,    52, 
53-55. 

may  not  be  by  contract,  in  California,  54-55. 
Public  policy  as  to  freedom  of  contract,  1,  84,  notes. 
Pullman  cars,  may  be  moved  with  mail  trains,  343,  346. 
Punishment  of  employees  forbidden,  61. 


R 

Railroads,  hours  of  labor  upon,  67-69. 

hours  of  law  held  unconstitutional  in  Ohio,  47. 

time  of  wage  payments  upon,  87. 

time  of  wage  law  held  unconstitutional  in  Texas,  90. 

strikes  upon,  made  illegal  without  notice,  etc.,  326-334. 

laws  for  protection  of  safety  of  employees,  etc.,  148. 

street,  hours  of  labor  upon,  68. 
Reasonableness  of  statutes,  courts  are  to  judge  of,  6,  20,  84. 
Reasonableness  of  powers  of  legislatures,  7,  note,  8. 
Receivers  (see    EqvAty,  Injunctions),  may    be   appointed    of 
manufacturing  companies  failing  to  pay  wages  weekly, 
in  Maryland  88,  89. 

must  prefer  labor  debts,  127-130. 

powers  of,  strikes  against,  etc.,  326-334. 
Relief  Societies,  upon  railroads,  compulsory,  forbidden,  114- 
116. 

payment  of  benefit  by,  no  defence,  114-116. 

legalized  in  Massachusetts,  116. 
Repairs  to  machinery,  time  deducted  for,  in  factories,  58. 
Restraint  of  trade  (see   Freedom  of  Contracts,  Trusts,  Con- 
spiracies), 2,  178-180,  185-193,  234,  266-268,  275-279. 
Restraint,  contracts  or  charters  effecting  it,  void,  2. 
Rhode  Island  Constitution,  effect  of,  8,  note. 
Right  to  labor  (see  Employment,  Contract),  228-231. 
Rights  (see  Bill  of  Rights,  Natu)xil  Rights,  etc.).    . 
Road.'*,  .itreet.s,  and  higliways,  regulation  of,  21. 


382  indp:x 


s 


Sailors,  laws  protecting  contracts  of,  21. 
Saw-mills,  etc.,  lionrs  of  labor  in  Michigan,  66. 
"  Scabs  "  (see  Non-Union  Etnp/oijees),  233,  234. 
Screen-laws,  in  coal  mines,  13,  22,  110-112. 
Seats  for  women  in  factories,  shops,  etc.,  80. 
Servants  (see  Master  and  Ser'vant),  enticing  to  leave,  2'>. 
Slavery,  enforcement  of  contract  for  personal  service,  31. 
Sobriety  of  operatives,  law  providing  for,  150. 
Socialism,  State,  no  experiment  yet  made,  13,  3G4-3G5. 
Soldiers,  etc.,  preferred  in  the  civil  service,  123-124. 
Special  privileges  or  immunities  (see  Class  Legislation). 
"  Special  stock"  in  trading  corporations,  etc.,  142,  144. 
Special  private  or  local  laws,  forbidden,  48. 
Specific  performance  of  labor  contract,  29,  32. 
Star  Chamber,  court  of,  early  jurisdiction,  315-316. 
State  Bureau  of  Labor  (see  Commissioner  of  Labor,  Unem- 
ployed). 
State  constitutions  (see    Constitution.,  etc.),  of  New  England 

States  peculiar,  6,  7,  note. 
State  Socialism  (see  Socialism),  13,  364,  365. 
Stationary  engines,  labor  upon,  69,  76. 
Statute  of  laborers,  trusts,  etc.  (see  various  titles). 
Statutes,  what  are  void  in  England,  2. 

what  are  void  in  the  United  States,  5,  13. 
Stay  of  suits,  not  granted  in  labor  claims,  127. 
Stevedores,  strikes  of,  31. 

Stockholders,  individually  liable  for  labor  debts,  130-132. 
Stores  (see  Company  Stores). 
Street  railways  (see  Railroads). 

Strikes    (see   also    Conspiracies,  Boycotts,    Trades    Unions), 
194-220. 

are  generally  lawful,  194. 

unlawful  if  made  without    a   grievance  to  control  em- 
ployer's actions,  214-216. 


INDEX  383 

Strikes  committed  in  breach  of  contract  may  be  illegal,  35, 
205,  208. 

early  English  doctrine  (see  Boycotts^  etc.),  195-202. 

American  doctrine,  17,  177-179,  202-205. 

conspiracies  to  persuade  others  to,  possibly  still  ualaw- 
ful,  214,  216,  237. 

"  sympathetic,"  occasionally  unlawful,  208,  214,  237,  272. 

statutes  concerning,  31,  35,  216-220,  303,  304. 
Suits  for  wages,  privileged  in  some  States,  132,  133. 
Sunday  Laws  (see  Holidays)^  21,  81. 
Sweatshops,  regulation  of,  151-153. 
Switches,  on  railways,  to  be  in  good  condition,  148. 


Tenement-made  goods  (see  Sweatshops),  151-153, 
Ten-hour  laws,  etc.  (see  Eight-Hour  Laws),  55-73. 
Theatres,  children  under  a  certain  age  not  to  be  employed  in, 

77,  78. 
Threats  in  labor  disputes  (see  Intimidation),  22-34,  239. 

to  strike,  maj'  be  unlawful,  238,  note. 
Time  of  payment  of  wages  (see  Weekly  Payment). 
Tools  or  property,  carrying  away,  etc.,  24. 
Towns  (see  Cities). 
Trade  (see  Restraint  of),  interference  with,  etc.,  23, 

laws  regulating,  under  police  power,  21. 
Trades  unions  (see  Unions),  14,  167-185. 

anciently  unlawful  in  England,  now  not,  167,  172-174. 

but  always  lawful  here,  168,  174-176,  248. 

may  generally  be  incorporated  under  express  statutes, 
169-171. 

by  employers,  commonly   held   in  restraint  of  trade,  by 
the  courts,  178-180,  185-193. 

discharge  for  membership  is  forbidden  by  statute,  181- 
183. 

such  statutes  held  unconstitutional,  182,  183. 

rights  and  remedies  of  members  of.  171.  172. 


384  INDEX 

Tramps,  may  be  set  at  labor  for  one  iiijiht,  in  Maine,  135. 
Truck  Acts  (see  Company  Stores),  13,  101-105,  107-110. 
Trusts,  by  employees,  etc.,  178,  179,  185-1'J3. 

Sherman  Act  of  1887,  31,  204,  334-337. 

Sherman  Act,  effect  of,  in  labor  disputes,  344-347. 
Tyler,  Wat,  If.. 

U 

"Unalienable  rights  "  (see  Natural  Rights). 
Unemployed,  state  aid  to,  364,  3G5. 

Unions,  labor  unions  (see  Trades    Unions^  Non-union  Em- 
ployees,  etc.),  13,  14,  167-185. 
discharge  for  membership  in,  37. 

statutes  favoring  union  labor  unconstitutional,  50,  note, 
laws  permitting,  by  employers  only,  unconstitutional,  14. 
of  employers  (see  Trusts.^  Restraint  of  Trade),  14,  178- 
180. 
Union  labels,  protection  of,  by  law,  184,  185. 
United  States  Constitution  (see  Fourieetith  Amendment,  Ninth 

Amendment,  etc.),  11,  12,  15. 
Unwritten  constitution,  the,  1-10,  70,  71,  note,  83. 
Usury  laws,  allowable,  21. 


Vacations,  of  child  employees,  etc.,  61-63. 
Violence  against  employers,  etc.  (see  Intimidation). 
Voting,  interference  with,  by  employers  forbidden,  117-120. 
time  for,  must  be  allowed  employees,  118. 


W 

Wages,  payment  of,  weekly  or  monthly,  13,  87-98. 
amount  may  not  be  regulated  by  law,  18,  40,  167. 
so  regulated  in  England  in  early  times,  16,  167,  172. 
attempts  by  employees  to  increase  rate  of  (see  Strikes), 
24. 


INDEX  385 

Wages,  laws  requiring  to  be  paid  in  money,  etc.  (see   Trade 
Acts,   Weekly  Payment  Laws). 

to  be  protected  by  law  in  Wyoming,  48. 

not  to  be  measured  by  screened  coal,  13. 

withheld  for  imperfect  work  (see  Fines  by  Employers), 
13. 

withheld  for  quitting  work,  39. 

attachments  and  assignments  of,  124,  125. 

paid  to  minors,  not  parents,  78. 

special  protection  of  claims  for,  22. 

preference  or  priority  of  claims  for,  127-130. 

suits  for,  specially  privileged  in  some  States,  132,  133. 
Walking  delegates  may  not  enter  factories,  etc.,  25,  note. 
Weavers'  fines  (see  Fines  by  Employers),  7,  82. 
Webster,  Daniel,  on  the  unwritten  constitution,  4. 
Weekly  payment  laws,  etc.  (see  Wages,  etc.),  13,  87-98. 
Wharfs  or  levees,  laws  regulating,  21. 
Women  and  children  (see  Hours  of  Labor),  55-73. 

laws  regulating  hours  of,  55-73. 

laws  regulating,  whether  constitutional,  64,  65. 

laws  regulating,  special  occupations,  71,  72. 

laws  regulating  further  statutory  restrictions,  78. 
Women's  rights,  78,  79. 

Woollen  and  cotton  factories,  hours  in,  55-66,  67,  72. 
Workshops,  hours  in  (see  Eight-Hour  Laws,  Sweatshops). 


LABOR   IN    ITS    RELATIONS 
TO    LAW. 

Four  Lectures  delivered  at  the  Plymouth  School 
of  Ethics,  July,  i8gj. 

By  F.  J.  STIMSON, 

Author  of  "  American  Statute  Law,"    "  Hand-book  to  the  Labor  Law  of  the 

United  States;'  Secretary  of  the  National  Conference  of  State 

Commissions  upon  Uniformity  of  Law,  etc.,  etc. 


lOtno,  75  cents  net. 


Mr.  Stimson  is  well  known  by  his  two  important  volumes 
on  American  Statute  Law,  and  as  an  authority  upon  statutes 
and  constitutional  questions  arising  therefrom.  Of  these  four 
lectures,  the  first  is  upon  the  History  of  the  Law  of  Labor, 
the  second  upon  the  Employment  Contract,  the  third  upon 
Strikes  and  Boycotts  and  Injunctions,  and  the  fourth  is  de- 
voted to  a  Forecast  of  the  Future  with  a  reasonable  statement 
of  the  position  of  both  sides,  a  consideration  of  impossible 
claims  and  the  way  to  a  possible  solution.  The  book  is  of 
exceptional  general  interest  just  now,  because  of  the  growing 
power  and  influence  of  labor  organizations  in  regulating 
•business  interests  and  shaping  legislation. 

Another  distinct  field  where  the  book  may  be  found  of 
great  value  is  among  schools  and  colleges  in  which  political 
and  social  science  is  now  receiving  such  prominent  attention. 
Instructors  are  therefore  requested  to  examine  it. 


Senl,  post-paid,  at  the  given  price,  or  may  be  ordered  through 
any  bookseller. 

CHARLES    SCRIBNER'S    SONS, 

133-157  Fifth  Avenue,  New  York 


CRITICAL    AND    PRESS    OPINIONS. 


Hknry  C.  Adams,  Professor  of  Political  Economy  and  Finance 
in  the  University  of  Michigan. — "  I  knew  of  this  book  before  it  was 
published,  and  am  glad  ih.-it  you  have  it  out  at  this  time.  It  is,  to 
my  Blind,  the  best  presentation  of  the  subject  yet  published.  I 
shall  use  it  at  once  in  my  class  studying  the  labor  question." 


vViLLARD  Fisher,  Professor  of  Economics  and  Social  Science 
in  Wesleyan  University. — "  It  is  an  extremely  interesting  little 
volume,  very  readable  and  very  clear." 

J.  W.  Jenks,  Professor  of  Political  Economy  and  Civil  and 
Social  Institutions  in  Cornell  University. — "I  had  the  pleasure  of 
listening  to  some  of  the  lectures  as  they  were  given  last  summer, 
and  recognize  the  value  of  the  material  as  well  as  the  clean-cut 
style  in  which  the  lectures  are  written." 


John  Bascom,  Professor  of  Political  Economy  in  Williams 
College. — "  It  is  in  a  high  degree  opportune.  The  facts  are  exactly 
what  we  need  to  know,  and  they  are  presented  in  a  most  kindly 
way.  The  discussion  is  stimulating  and  instructive.  I  gladly 
recommend  the  book." 

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arguing  from  the  stand-point  of  labor,  Mr.  Slimson  presents  facts, 
figures,  and  force  of  logic  to  his  subject  that  cannot  fail  to  be  gen- 
erally appreciated." 

Boston  Daily  Advertiser. — "The  questions  discussed  are 
vital,  and  they  are  discussed  thoughtfully,  ably,  and  decisively." 


The  Gazette,  Boston. — "  The  sound  and  sensible  views  ex- 
pressed are  worthy  the  attention  of  both  capitalist  and  wage 
worker.  Mr.  Stimson  expresses  himself  with  great  clearness  and 
cogency,  and  shows  an  intimate  historical  and  legal  knowledge  of 
his  subject.     The  subdivisions  are  admirable  and  helpful." 


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